Nicewicz v. Nicewicz

• Decision Date: 23 February 1926
• Citation: 104 Conn. 121,132 A. 399
• Court: Connecticut Supreme Court
• Parties: NICEWICZ v. NICEWICZ.

132 A. 399

104 Conn. 121

NICEWICZ v. NICEWICZ.

Supreme Court of Errors of Connecticut.

February 23, 1926

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Action by Anthony Nicewicz against Mary Malon Nicewicz for money loaned, and for money advanced and loaned and paid at defendant's request. Verdict for defendant, and plaintiff appeals. No error.

Charles S. Hamilton, of New Haven, and Morris M. Wilder, of Meriden for appellant.

Michael V. Blansfield, of Waterbury, for appellee.

Argued before WHEELER, C.J., and CURTIS, KEELER, MALTBIE, and HAINES, JJ

WHEELER, C.J.

The plaintiff claimed and offered evidence to prove: The plaintiff and defendant are husband and wife. On account of an estrangement between them the plaintiff gave to his wife the defendant, a deed of conveyance of his interest in their dwelling place, and in consideration thereof she gave a note secured by mortgage upon these premises to the plaintiff. They continued to live in this house for some months, but separately, in separate rooms, and the defendant, during this time, managed the property and treated it as her own, and from the date of the conveyance the plaintiff had, at the request of the defendant and for her benefit, loaned her upwards of $1,300, and performed services and made purchases and paid out money for her at her request amounting to upwards of $150, and she owed him $500, being the amount agreed upon for his interest in the household furniture. The defendant offered evidence tending to disprove plaintiff's right to recover any of these sums, and the jury found in favor of the defendant.

Reason of appeal 1, is from a part of the charge in which the court instructed the jury that, while the plaintiff had offered the testimony of witnesses, which, if believed, corroborated to some extent the testimony of the plaintiff, the case turned largely upon ascertaining which of the parties to the action was telling the truth. The instruction was within the discretion of the court. The nature of the case suggests that it was timely and a wise exercise of discretion. A second ground of appeal is that the court placed undue stress upon a receipt given by plaintiff to the defendant, and thereby disparaged his explanation of the giving of the receipt.

In disproof of plaintiff's testimony that he had loaned defendant in varying sums upwards of $1,300 over a period of time, the defendant offered evidence that she had been paying plaintiff $200 every six months to apply on the mortgage which she had given plaintiff, together with the interest due upon it. In corroboration of the fact that she had made these payments, she offered in evidence the receipt referred to for $305 covering a $200 payment and interest on the mortgage prepared by an official of the savings bank and signed by plaintiff; the payments having been made two months in advance of the time when due. The plaintiff's explanation was that he had signed the receipt on defendant's promise to subsequently pay him which she never did. The court instructed the jury that the receipt is not conclusive evidence of the payment, but the jury should consider whether the plaintiff would have been likely to have given a receipt for a payment in advance of the time when it was due or when he received it. This instruction was not erroneous. If the instruction were open to any criticism, it was its moderation in not pointing out to the jury with even greater clearness the preposterousness of plaintiff's explanation, and its effect upon his claim that he had made his wife these loans during this period. Johnson v. Shuford, 98 A. 333, 91 Conn. 1; Shmilovitz v. Bares, 55...