Martin v. Kavanewsky

CourtSupreme Court of Connecticut
Writing for the CourtBefore KING; RYAN
Citation255 A.2d 619,157 Conn. 514
PartiesThomas W. MARTIN v. Joseph KAVANEWSKY et al.
Decision Date04 February 1969

Page 619

255 A.2d 619
157 Conn. 514
Thomas W. MARTIN
v.
Joseph KAVANEWSKY et al.
Supreme Court of Connecticut.
Feb. 4, 1969.

Melvin J. Silverman, Norwalk, with whom, on the brief, were Max R. Lepofsky and George J. Lepofsky, Norwalk, for appellants (defendants).

Page 620

Richard Greenwald, East Norwalk, with whom was Frank W. Murphy, Norwalk, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN JJ.

[157 Conn. 515] RYAN, Associate Justice.

The first count of the complaint sought recovery from the defendants for breach of contract. In the second count, the plaintiff alleged that, because of a breach of the contract by the defendants, the plaintiff was prevented from completing his contract. He sought damages in quantum meruit for labor and materials supplied to the land of the defendants. The case was tried to a state referee sitting as a court who rendered judgment for the defendants on the first count and for the plaintiff in the sum of $2783 on the second count. The defendants have appealed from the judgment rendered on the second count.

The defendants seek to have added to the finding a number of paragraphs of the draft finding on the ground that the facts stated in them were admitted or undisputed. To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614; Maltbie, Conn.App.Proc. § 158. That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. Practice Book § 628(a). 'The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534, and cases cited therein. A further requirement for such an addition to the finding is that the particular portion of the appendix, pleadings or exhibit, as the case may be, relied upon as requiring the addition, be pointed out in the appellant's brief. Maltbie, op. cit., § 328.' Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634, 636; Drazen Lumber Co. v. Casner, 156 Conn. 401, 403, [157 Conn. 516] 242 A.2d 754; Brockett v. Jensen, 154 Conn. 328, 330, 225 A.2d 190. Certain additions to the finding claimed by the defendants are implicit in the finding as made. Broderick v. Shea, 143 Conn. 590, 591, 124 A.2d 229. Other additions requested involved facts which are immaterial. Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 128, 239 A.2d 519. The defendants have not established any failure on the part of the trial court to include in its finding any fact which was material and was admitted or undisputed. The defendants also assigned error in other portions of the court's finding of subordinate facts and in certain of its conclusions. These assignments of error have not been pursued in their brief and are, therefore, treated as abandoned. Katz v. Brandon, 156 Conn. 521, 524, 245 A.2d 579; State v. Kohlfuss, 152 Conn. 625, 635, 211 A.2d 143.

The court found the following facts: On February 28, 1957, the defendants were the owners of certain lots in a residential area in the town of New Canaan, and the plaintiff was a builder and building contractor. On that date, the plaintiff and the defendants entered into simultaneous written agreements in which the defendants agreed to sell and convey lots to the plaintiff upon payment of an agreed price. Under the terms of these agreements, the plaintiff was given the right, prior to conveyance, to enter upon each of the lots and construct a residence thereon for sale. The defendants agreed to finance the construction by advancing to the plaintiff specified sums of...

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65 practice notes
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...considered abandoned. Page 550 Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184, 286 A.2d 299; Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d The defendant's first claim is that certain of the court's findings, as specified in his assignments of error, are unsupported......
  • State v. Copeland, No. 12828
    • United States
    • Supreme Court of Connecticut
    • September 1, 1987
    ...be regarded as found by the trial court. Jennings v. Reale Construction Co., 175 Conn. 16, 17, 392 A.2d 962 (1978); Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619 (1969). The trial court, after determining the credibility of the witnesses and the weight to be given their testimony, ......
  • Thames River Recycling, Inc. v. Gallo, (AC 16742)
    • United States
    • Appellate Court of Connecticut
    • November 3, 1998
    ...occurs when the breaching party repudiates his duty before the time for 50 Conn. App. 791 performance has arrived. Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Koski v. Eyles, 37 Conn. Sup. 861, 862, 440 A.2d 317 (1981). Its effect is to allow the nonbreaching party to ......
  • Robertson v. Apuzzo
    • United States
    • Supreme Court of Connecticut
    • March 16, 1976
    ...(on appeal) [170 Conn. 385] (will) not retry a case. Salvatore v. Milicki, 163 Conn. 275, 278, 303 A.2d 734, 736; Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; Ramadei v. Saccavino, 150 Conn. 700, 190 A.2d 489.' Lyddan v. Lyddan, 166 Conn. 204, 206, 348 A.2d 674. Significant consi......
  • Request a trial to view additional results
65 cases
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...considered abandoned. Page 550 Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184, 286 A.2d 299; Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d The defendant's first claim is that certain of the court's findings, as specified in his assignments of error, are unsupported......
  • State v. Copeland, No. 12828
    • United States
    • Supreme Court of Connecticut
    • September 1, 1987
    ...be regarded as found by the trial court. Jennings v. Reale Construction Co., 175 Conn. 16, 17, 392 A.2d 962 (1978); Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619 (1969). The trial court, after determining the credibility of the witnesses and the weight to be given their testimony, ......
  • Thames River Recycling, Inc. v. Gallo, (AC 16742)
    • United States
    • Appellate Court of Connecticut
    • November 3, 1998
    ...occurs when the breaching party repudiates his duty before the time for 50 Conn. App. 791 performance has arrived. Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Koski v. Eyles, 37 Conn. Sup. 861, 862, 440 A.2d 317 (1981). Its effect is to allow the nonbreaching party to ......
  • Robertson v. Apuzzo
    • United States
    • Supreme Court of Connecticut
    • March 16, 1976
    ...(on appeal) [170 Conn. 385] (will) not retry a case. Salvatore v. Milicki, 163 Conn. 275, 278, 303 A.2d 734, 736; Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; Ramadei v. Saccavino, 150 Conn. 700, 190 A.2d 489.' Lyddan v. Lyddan, 166 Conn. 204, 206, 348 A.2d 674. Significant consi......
  • Request a trial to view additional results

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