Nocera v. La Mattina

• Decision Date: 02 March 1929
• Citation: Nocera v. La Mattina, 109 Conn. 589, 145 A. 271 (Conn. 1929)
• Court: Connecticut Supreme Court
• Parties: NOCERA v. LA MATTINA.

145 A. 271

109 Conn. 589

NOCERA v. LA MATTINA.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Court of Common Pleas, New Haven County; John F McGrath, Special Judge.

Action by Joseph Nocera against Antonina La Mattina to recover a commission as real estate agent for procuring the sale of the defendant's premises, brought to the court of common pleas for New Haven county, at Waterbury, and tried to the court. Judgment for the plaintiff, and appeal by the defendant. No error.

Francis J. Summa and Charles R. Summa, both of Waterbury, for appellant.

William B. Hennessy and John B. Greco, both of Waterbury, for appellee.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and JOHN RUFUS BOOTH, JJ.

HAINES, J.

It appears from the finding that the defendant appellant was the owner of a house and lot in Waterbury, and, desiring to sell it, enlisted the services of the plaintiff to find a purchaser for the property, agreeing to pay him 3 per cent on the sale price. The plaintiff thereupon offered it to a Mrs. Bianca, who lived with her husband in Waterbury. The families of Mrs. Bianca and the defendant were personal acquaintances. The price at which the property was offered to Mrs. Bianca not being satisfactory to her, she offered the plaintiff a lower price, which the plaintiff reported to the defendant, who refused it, but named a somewhat lower figure than at first, which the plaintiff in turn reported to Mrs. Bianca, and the latter refused to pay that figure, but increased her first offer. This was reported to the defendant by the plaintiff, but was not then accepted.

While the matter thus stood, Mr. and Mrs. Bianca visited the defendant without the knowledge of the plaintiff, and, concessions in price being made on both sides, a sale was concluded at $10,600, a payment of $200 was made to the defendant to bind the bargain, and the property was deeded by the defendant to Mr. and Mrs. Bianca. Upon demand by the plaintiff for a commission of 3 per cent. on the sale price, the defendant refused to pay the plaintiff, who then brought this action and obtained judgment for $318, being 3 per cent. on $10,600. The appellant, by motion to correct, sought to eliminate from the finding the statements that the property was sold to Mrs. Bianca and her husband, and that it was transferred to them. It is not claimed that these facts were found without evidence, but the reason given for the motion is that the evidence supporting these findings was not the best evidence.

No objection to the evidence, or motion to strike it out on the trial, appears of record, and advantage cannot be taken of the best evidence rule simply by motion to correct the finding. Practice Book 1922, p. 309, § 11; Elkin v. McGeorge, 103 Conn. 486, 489, 130 A. 898; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 129 A. 527. She also sought to add to the finding 8 of the 14 requests to find, the substance of which was that Mr. Bianca testified he had not been told of the property by any real estate agent, and that he had not been told by his wife that the property was offered for sale; also that the defendant had talked with other real estate agents, but had not given the exclusive agency to any one; that the plaintiff did not produce the deed in court, nor explain its absence, nor call Mrs. Bianca to support his claims; and, finally, that Mrs. Bianca did not buy the property or furnish money therefor.

Upon these claims there is inserted in the record many pages of testimony, much of it contradictory, and a large portion of it irrelevant, and without bearing upon the questions at issue. This irrelevant evidence has no proper place in this record, and should not have been printed.

It is apparent that the trial court did not accept as true some portions of the defendant's evidence. This was within the province of the court. On the other hand, there is evidence which reasonably and fairly supports the conclusion that the sale was made to Mrs. Bianca and her husband. For this reason, and also because much which the appellant desired to add to the finding was...