Macri v. Torello
| Decision Date | 02 March 1927 |
| Court | Connecticut Supreme Court |
| Parties | MACRI v. TORELLO ET UX. |
Appeal from Court of Common Pleas, New Haven County; Walter M Prickett, Judge.
Action by Valentina Macri against Michael Torello and wife to recover an amount of insurance on her husband's life which was received by the defendants. Verdict and judgment for the plaintiff, and defendants appeal from the court's denial of their motion to set aside verdict. No error.
Franklin Coeller, of New Haven, for appellants.
Louis Feinmark and Dominic W. Celotto, both of New Haven, for appellee.
The record in this case contains the pleadings, the verdict of the jury, the judgment, and the defendants' motion to set aside the verdict because contrary to and against the evidence, and its denial.
The record does not contain the charge to the jury, or any requests to charge, nor are there any rulings of the court and exceptions upon the admission of evidence, nor rulings upon any pleadings or motions, except the one above stated. There is, therefore, in the record no proceeding that required a ruling as to the fundamental nature of the causes of action set up in the two counts. Whether the action as to the first count as alleged constitutes an action on false representation or upon a promise (that is a contract) is left on the record at large. The briefs of the parties in this case apparently deal with each of the two counts as constituting an action of fraud. Presumably the trial court so dealt with the case.
The first count alleges these facts: Michael Macri in January 1925, took out two life insurance policies on his life in the Prudential Insurance Company of America which policies were made payable to the plaintiff, his wife, and he died in June, 1925. The defendants informed the plaintiff that they had paid certain premiums on these policies at her husband's request, which they expected to be repaid from the proceeds of the policies, which proceeds amounted to $585, and the insurance company prepared a check for that sum to the order of the plaintiff to settle these policies.
The plaintiff thereupon called on the defendants with this check in order to pay them the amount of the premiums claimed to have been paid by them. The defendants then with the fraudulent intent to deprive the plaintiff of all the proceeds of the check, in pursuance of a plan already conceived by them, induced the plaintiff to indorse the check to them, upon their statement that they would cash the check and deduct therefrom the premiums paid by them, and give the plaintiff the balance of the check. The defendants cashed the check, and upon demand refused to pay any of the proceeds to the plaintiff.
The proof of the above facts amply supports the essential elements to establish an action for deceit or false representation as set forth in Barnes v. Starr, 64 Conn. 136, 28 A. 980, and Bradley v. Oviatt, 86 Conn. 67, 84 A. 321, 42 L.R.A. (N. S.) 828, as follows: (1) That a representation was made as a statement of fact; (2) that it was untrue; (3) and known to be untrue by the party making it; (4) and made to induce the other party to act upon it; (5) that the party to whom it was made was induced thereby to act to his injury.
The statement of fact constituting the representation was the statement of the defendants that they would cash the check and pay themselves the amount of the premiums paid by them, and give the plaintiff the balance of the amount received. This is, in effect, a statement of their intention to do so. As is said in Clerk and Lindsell on Torts (7th Ed.) p. 523:
" It has been sometimes stated that a misrepresentation as to a person's intention will not suffice, but that view seems to be mistaken."...
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