Marfisi v. Spagnola, 40745

Decision Date15 December 1976
Docket NumberNo. 40745,40745
Citation248 N.W.2d 24,197 Neb. 211
PartiesJohn J. MARFISI, Appellant, v. Alfred SPAGNOLA, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. In an appeal in an equity action, it is the duty of this court to try issues of fact de novo upon the record and to reach an independent conclusion thereon without reference to the findings of the District Court.

2. In an equity case, when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of facts rather than the opposite.

Smith & Hansen, Omaha, for appellant.

Robert G. Spagnola, Omaha, for appellee.

Heard before WHITE, C.J., BOSLAUGH, NEWTON and BRODKEY, JJ., and KUNS, Retired District Judge.

WHITE, Chief Justice.

This is an appeal in an equity action in which the plaintiff sought a decree from the District Court setting aside a purported bill of sale by which the plaintiff allegedly transferred all right, title, and interest in the Hollywood Spots-Lite Company to the defendant, requiring the defendant to return the assets and records of the company to the plaintiff, and restraining the defendant from doing business as the Hollywood Spots-Lite Company.

The issue was tried before the District Court. On February 13, 1976, the District Court, in its decree, found that the bill of sale was a valid instrument and as such transferred all right, title, and interest to the assets, good will, trade name, patents, and patent rights held in connection with the operation of the Hollywood Spots-Lite Company, and dismissed the plaintiff's petition. The plaintiff appeals. We affirm the judgment of the District Court.

In an appeal in an equity action, it is the duty of this court to try issues of fact de novo upon the record and to reach an independent conclusion thereon without reference to the findings of the District Court. Kolc v. Krystyniak, 196 Neb. 16, 241 N.W.2d 348 (1976); Campbell v. Buckler, 192 Neb. 336, 220 N.W.2d 248 (1974). However, when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of facts rather than the opposite. Pinney v. Hill, 191 Neb. 844, 218 N.W.2d 212 (1974); Parkhurst v. Parkhurst, 184 Neb. 687, 171 N.W.2d 243 (1969).

The sole factual determination presented in this case is whether or not the plaintiff did knowingly and willfully execute a bill of sale, which operated to transfer all his right, title, and interest in the Hollywood Spots-Lite Company to the defendant. We find that he did.

The plaintiff, in 1949, started up a small one-man business known as the Hollywood Spots-Lite Company. Prior to 1949, the plaintiff had been in the ballroom business in Omaha, Nebraska. The plaintiff's company, which operated out of a location in North Omaha, manufactured a revolving, global light fixture which cast off beams of colored light, and which was used primarily by skating rinks and ballrooms. The plaintiff had developed this device over a period of 7 years and had received a patent on it.

Around 1959, the defendant, the plaintiff's nephew by marriage, began helping the plaintiff in his business. Over the next 4 years, the defendant spent several evenings per week and many Saturdays assisting his uncle.

On June 3, 1963, the plaintiff's wife of 40 years died of a sudden heart attack. The plaintiff was admitted to the hospital that day and remained there for 2 days. On June 4, 1963, the plaintiff while in the hospital, asked Samuel Caniglia, who was at that time a practicing attorney in Omaha, to prepare a bill of sale for the transfer of the Hollywood Spots-Lite Company to the defendant. Caniglia was also directed by the plaintiff to prepare a will at the same time. Caniglia testified that the plaintiff told him to omit any reference to his business in the drafting of the will because the bill of sale had taken care of this. The bill of sale recited a consideration of one dollar, and this sum was handed over by the defendant to the plaintiff's brother, who in turn handed the money to the plaintiff. Caniglia testified that both documents, the bill of sale and the will, were signed by the plaintiff in his presence and in the presence of two nurses acting as witnesses.

The plaintiff testified that he signed the will on June 4, 1963, at the hospital, but denied having signed the bill of sale. In his pleadings, the plaintiff states that the signature on the bill of sale appears to be his, but that he recalls only the execution of the will.

Several months after his wife's death and the execution of the bill of sale, the plaintiff accompanied the defendant to the North Side Bank in Omaha, and placed the defendant's signature on the company account. In 1964, the plaintiff helped the defendant move the business from its location in North Omaha to the defendant's basement. The defendant offered the plaintiff a key to his house at this time, but the plaintiff refused, not wanting to be involved if anything would be missing from the defendant's house.

In 1965, the plaintiff wrote to the Danbury State Fair, a former husiness customer of the company. In that letter he stated:

'* * * I would like to call your attention to a change that has been made in the management of the firm, about 20 months ago my wife passed away with a sudden heart attack and as I am now near 76 years of age it...

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4 cases
  • Biggerstaff v. Ostrand, 41285
    • United States
    • Nebraska Supreme Court
    • January 25, 1978
    ...the record and to reach an independent conclusion thereon without reference to the findings of the District Court. Marfisi v. Spagnola, 197 Neb. 211, 248 N.W.2d 24 (1976). However, when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determ......
  • Schupack v. McDonald's System, Inc., 41114
    • United States
    • Nebraska Supreme Court
    • April 5, 1978
    ...the record and to reach an independent conclusion thereon without reference to the findings of the District Court." Marfisi v. Spagnola, 197 Neb. 211, 248 N.W.2d 24 (1976). "Such independent conclusions of fact must be determined by this court in accordance with the ordinary rules governing......
  • Tedco Development Corp. v. Overland Hills, Inc.
    • United States
    • Nebraska Supreme Court
    • May 3, 1978
    ...witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite. Marfisi v. Spagnola, 197 Neb. 211, 248 N.W.2d 24 (1976); Kolc v. Krystyniak, 196 Neb. 16, 241 N.W.2d 348 The basic facts are not in dispute. On October 19, 1976, Odell and Eva ......
  • Wasserburger v. Coffee, 41588
    • United States
    • Nebraska Supreme Court
    • July 19, 1978
    ...court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other. Marfisi v. Spagnola, 197 Neb. 211, 248 N.W.2d 24. The defendant Coffee contends that the evidence was insufficient to establish that any violations of closing orders by h......

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