Mascolo v. Montesanto

• Decision Date: 19 June 1891
• Citation: 61 Conn. 50,23 A. 714
• Court: Connecticut Supreme Court
• Parties: MASCOLO v. MONTESANTO.

23 A. 714

61 Conn. 50

MASCOLO

v. MONTESANTO.

Supreme Court of Errors of Connecticut.

June 19, 1891.

Appeal from city court of New Haven; Pickett, Judge.

Action by John Mascolo against Giuseppe Montesanto on a promissory note. Judgment for plaintiff. Defendant appeals. Affirmed.

J. P. Goodhart, for appellant.

P. Pond and W. Pond, for appellee.

ANDREWS, C. J. A minor son of the defendant was sued in a civil action for an assault and battery, and his body attached. The defendant went with his son and the officer to the office of the attorney who had issued the complaint. He there met the plaintiff, and such negotiations were had that the defendant paid $20 in money and gave his note for the sum of $80 to the plaintiff, and the action for assault was withdrawn. The note was in these words: "New Haven, Conn., Apr. 5th, 1890. For value received, in consideration of the withdrawal of a suit against my son Achillo Montesan to without further costs, I promise to pay to the order of John Mascolo eighty dollars on demand.

Giuseppe Montesanto. "The case was tried in the city court of the city of New Haven.' The defendant admitted that he signed the note, but denied that there was any lawful consideration therefor, and he claimed that the signature was obtained from him by duress, fraud, and deceit. The court made a finding of facts as follows: On April 5, 1890, Angelo Mascolo, a minor about 12 1/2 years of age, by his father and next friend, the plaintiff in this case, brought a civil action, by A. H. Moulton, attorney, against Achillo Montesan to, a minor about 15 1/2 years of age, the son of Giuseppe Montesanto, the defendant in this case, by writ and complaint duly issued and returnable before J. W. Chapin, justice of the peace, in which complaint it was alleged that the said Achillo Montesanto made an assault upon, and had committed buggery upon and with, said Angelo Mascolo, and that in the commission of the assault he had greatly injured him, and communicated a loathsome disease to him, whereby he became sick and disabled, and was subjected to great expense for medical service, care, and attendance, for which damages in the sum of $100 were demanded in the action. The writ and complaint were duly served by Michael R. Enscoe, a constable of the town of New Haven, who by special direction of Moulton, the attorney, attached the body of Achillo Montesanto, took him into custody, and brought him to the office of the attorney. Giuseppe Montesanto followed his son Achillo to the office, and there met the attorney and John Mascolo, the father of Angelo. The plaintiff and defendant, being Italians, unable to speak the English language, called one Richards into the office to act as interpreter, and through him oral communications were made between the attorney, Montesanto, and Mascolo concerning the arrest and the case. Through the interpreter an agreement was entered into, with the knowledge, consent, and under the advice of the attorney for the plaintiff in the original suit, between John Mascolo, father and next friend of Angelo Mascolo, the boy claimed to be so injured, and Giuseppe Montesanto, father of Achillo, the boy who it was claimed committed the injury, which agreement the court finds to have been as follows: That upon condition of the withdrawal of the civil action of Angelo Mascolo, by his father and next friend, John Mascolo, against Achillo Montesanto, he (Giuseppe Montesanto) would pay to John Mascolo the sum of $20 down, and also give his promissory note for the sum of $80, payable to the order of John Mascolo, on demand, which payment was then and there made, and the note given, after having been read to the maker by the interpreter, which note is the subject of this suit. The court further finds that, previous to the making of this agreement, Giuseppe Montesanto, the defendant, requested Moulton, the original plaintiff's attorney, through the interpreter, to inform him as to what claims were made against the defendant's son Achillo in the civil suit; that the attorney fully and plainly explained to him all that was claimed in the suit, and, in reply to Montesanto's inquiries as to his son's liability to any other claim, Moulton informed him that he might be liable to a criminal prosecution for the offense, and at the same time informed him that he had no control as to such criminal prosecution, and that any settlement of the pending civil case would not and could not make any difference as to such criminal prosecution. The court finds that while the agreement was pending a friend suggested to Montesanto, the defendant, that ho would give a continuance bond for the defendant's son if desired, but the defendant declined to ask for continuance or to accept the proffered bond, and that he voluntarily paid the sum of $20 and gave the note for $80, solely upon the condition that the civil action would be withdrawn and his son released. Upon payment of the $20 and the delivery of the note by the defendant to the attorney for the plaintiff, the suit was withdrawn, and the defendant's son was released and took an early departure from the jurisdiction. No return of the writ was ever made to the justice of the peace. Upon the foregoing facts the defendant claimed that he gave the note under a misapprehension of the facts, and therefore was not liable to pay the same; that there was no valid consideration for the note, and that, therefore, he was not...