Maruca v. Phillips
| Decision Date | 24 June 1952 |
| Citation | 90 A.2d 159,139 Conn. 79 |
| Court | Connecticut Supreme Court |
| Parties | MARUCA v. PHILLIPS. Supreme Court of Errors of Connecticut |
Irwin I. Krug, Willimantic, for the appellant (defendant).
Robert F. Kahan, Rockville, with whom, on the brief, was Robert J. Pigeon, Rockville, for the appellee (plaintiff).
Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.
The plaintiff brought suit against the defendant for the dissolution of their partnership, an accounting, the appointment of a receiver, and damages. The first count of the complaint alleges breach of the partnership agreement. The second count alleges that the defendant made false representations to induce the plaintiff to enter into the partnership so that he could obtain the plaintiff's money and that the plaintiff relied upon them to his damage. It further alleges misappropriation of the partnership funds. The case was referred to a state referee, who found that the plaintiff, in full performance of his promises under the contract, had delivered to the defendant $7,000 in cash or its equivalent, a deed to real estate valued, by agreement, at $3,000, and a note for $10,000. He also found that the defendant had falsely represented the value of his interest in the partnership and that he had used partnership property and money to meet his own personal obligations. It was agreed that the plaintiff was indebted to the partnership in the amount of $789.75. The court accepted the report of the referee and rendered judgment dissolving the partnership, canceling the deed and the $10,000 note, and awarding $6,210.25 damages to the plaintiff. The defendant has appealed.
The defendant's claims of error raise two issues. The first is that the plaintiff is not entitled to restitution on the ground of fraud because the specific acts of fraud relied upon are not pleaded. Where a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint. Gates v. Steele, 58 Conn. 316, 318, 20 A. 474; Bradley v. Reynolds, 61 Conn. 271, 279, 23 A. 928; Robert v. Finberg, 85 Conn. 557, 561, 84 A. 366. The allegations of the complaint met this test. In addition to general assertions of fraudulent representations, the complaint stated that they were made to allow the defendant to get the plaintiff's money without in fact setting up the partnership as a going business and that the defendant misappropriated the partnership's funds. The latter is fruad as a matter of law. Filley v. Phelps, 18 Conn. 294, 300. As amended, the complaint further alleged that the defendant concealed and failed to disclose certain material facts when there was a duty to disclose and that this was a factor inducing the plaintiff to enter into the partnership agreement. The first claim of error is without merit.
The defendant's second claim is that the plaintiff is not entitled to restitution because he has not elected to seek such relief but has affirmed the contract by asking enforcement of his rights under it, and, further, that he has failed to return the consideration he received in order to put the defendant in statu quo ante. Neither claim appears in the written claims of law attached to the report of the referee and nothing in the memorandum of decision in the Superior Court indicates that it was raised there. There was no finding. Under these circumstances we are not required to consider the claims. Practice Book, §§ 154, 409; Maltbie, Conn.App.Proc., § 44. That aside, the judgment can be supported on the theory that the plaintiff was affirming the partnership contract and seeking a recovery for the fraud itself. It does not appear from the report that the plaintiff received anything of benefit from the defendant or from the partnership which he should return except $789.75, for which the court made allowance in the judgment. This was proper. Cain v. Norman, 140 Wash, 31, 35. 37, 248 P. 71. The complaint and the answer both seek equitable relief; the one, dissolution of the partnership, an accounting, and the appointment of a receiver; the other, reformation of the partnership agreement. The settlement of partnership affairs comes properly within the equity jurisdiction of the court, and the relief which equity can afford is particularly appropriate and effective. Barber v. International Co., 73 Conn. 587, 606, 48 A. 758; Niles v. Williams, 24 Conn. 279, 284; 4 Pomeroy, Equity...
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Jpmorgan Chase Bank, Nat'l Ass'n v. Virgulak
...really grow out of or are connected with the subject-matter of that suit." (Internal quotation marks omitted.) Maruca v. Phillips , 139 Conn. 79, 82–83, 90 A.2d 159 (1952). "In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done.......
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City of Hartford v. McKeever, No. 33027.
...really grow out of or are connected with the subject-matter of that suit.” (Internal quotation marks omitted.) Maruca v. Phillips, 139 Conn. 79, 82–83, 90 A.2d 159 (1952). “In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done........
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Lonergan v. Connecticut Food Store, Inc.
...the relief otherwise available be wholly inadequate to do justice. Benassi v. Harris, 147 Conn. 451, 456, 162 A.2d 521; Maruca v. Phillips, 139 Conn. 79, 83, 90 A.2d 159; Spencer v. Merwin, 80 Conn. 330, 334, 68 A. 370. We need merely state on this question that the plaintiff in the present......
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Whitaker v. Taylor
...omitted; internal quotation marks omitted.) Chiulli v. Zola, supra, 97 Conn. App. at 709, 905 A.2d 1236; see also Maruca v. Phillips, 139 Conn. 79, 81, 90 A.2d 159 (1952) ("[w]here a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient......
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TABLE OF CASES
...FA054007219S, 2006 WL 1893185 (Conn. Super. Ct. June 14, 2006) 1-8:2 Martyn v. Donlin, 151 Conn. 402 (1964) 1-8:7.5 Maruca v. Phillips, 139 Conn. 79 (1952) 8-7:2 Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 92 (1998) 1-1 Maryland Attorneys Grievance Comm'n v. Gansler, 835 A.2d 548 (Md.......
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CHAPTER 8 - 8-7 FRAUD
...Loan Investors, L.P., 260 Conn. 766, 777-78 (2002) (citation omitted; internal quotation marks omitted). [143] Maruca v. Phillips, 139 Conn. 79, 81 (1952).[144] Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 343 (1991); Kilduff v. Adams, Inc., 219 Conn. 314, 327 (1991); Weisman......