Perry v. M. M. Puklin Co.

• Decision Date: 13 December 1923
• Court: Connecticut Supreme Court
• Parties: PERRY v. M. M. PUKLIN CO.

123 A. 28

100 Conn. 104

PERRY v. M. M. PUKLIN CO.

Supreme Court of Errors of Connecticut.

December 13, 1923

Appeal from Court of Common Pleas, New Haven County; Ernest C Simpson, Judge.

Action by Nathan Perry against the M. M. Puklin Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action in the nature of a petition for a new trial, on the ground of newly discovered evidence, for fraud preceding the trial, and for a conspiracy to cheat and defraud plaintiff brought to and tried by the court of common pleas in New Haven county, by Simpson, J., upon a demurrer to the complaint, which the court sustained.

The complaint alleges that on February 8, 1923, the jury found a verdict for the M. M. Puklin Company (the present defendant) against Nathan Perry (the present plaintiff), in an action tried in the court of common pleas, and that judgment thereon was rendered by the court in its favor for $850 damages; that subsequent to the trial of this action the plaintiff learned that it was brought in accordance with a corrupt and wrongful agreement made by and between the defendant and one Samuel Weinberg, whereby Weinberg agreed to retain a lawyer to sue the plaintiff, and agreed further to testify in the action in vehalf of the defendant, in consideration of which it was agreed that he was to receive a portion of whatever judgment might be recovered; that in accordance with this agreement Weinberg did obtain counsel, who instituted the action before mentioned, upon which judgment was rendered against the present plaintiff.

Upon the trial it appeared that the determining question of fact was as to whether a certain check for $500, signed by the M M. Puklin Company, was delivered to Nathan Perry, or whether it was delivered to Nathan Perry's brother, one Matthew Perry. The following testimony was all of the testimony bearing upon this question of fact which was introduced on the trial of the action, to wit: One Morris Puklin testified that he had signed the check as an officer of the M. M. Puklin Company; that he in person delivered the check to the present plaintiff, Nathan Perry, as a deposit for sugar which he (Nathan Perry) had agreed to sell to the M. M. Puklin Company. Nathan Perry, the plaintiff herein testified that he did not receive this check. The plaintiff further offered the testimony of Matthew Perry read to the jury in his absence by virtue of a stipulation made by the parties, to the effect that prior to April, 1920, he had several dealings with the plaintiff concerning the sale of sugar in his own behalf and as a copartner with one John Chapnick, and made an agreement in April, 1920, with the M. M. Puklin Company to sell him a quantity of sugar. This agreement was made by Matthew Perry with the company in his own behalf. He was not authorized by Nathan Perry to act for Nathan Perry in making this sale and did not act for him. Matthew Perry received a check for $500, which he believed was made payable to him, and that he indorsed the check in his own name and received the money for his own use in connection with this contract; that he paid no portion of the same to Nathan Perry, and did not inform Nathan Perry that he had such check; that the M. M. Puklin Company refused to carry out its agreement with Matthew Perry.

Prior to the trial of the action, Arthur L. Puklin, an agent of the defendant, informed the attorney for the plaintiff that the M. M. Puklin Company had delivered this check for $500 to Matthew Perry, believing him to be the agent of Nathan Perry, and Arthur L. Puklin further informed the plaintiff's attorney that the defendant would claim upon trial of the action that the check was delivered to Matthew Perry, and that Matthew Perry was the agent of Nathan Perry. The plaintiff's counsel, relying upon said statements prepared to try the action upon the issue of agency, but Morris Puklin upon the trial of the action falsely and fraudulently testified as aforesaid for the purpose of evading said issue, and the plaintiff herein was surprised by this testimony because of the conduct of the defendant through its agent, and the plaintiff herein was unable to properly disprove said evidence which was false and untrue.

That subsequent to the trial of said action the plaintiff discovered new evidence, which he failed to discover for the reasons aforesaid before or during the trial of the action, although he used reasonable diligence in connection with the preparation for the trial and in the trial of the action, which evidence is as follows:

(a) One Samuel Markle of New Haven, Conn., will testify that he was informed by the M. M. Puklin Company or Arthur Puklin, its duly authorized agent, that this check was intended for Matthew Perry; that a stenographer's error was responsible for its being made payable to Nathan Perry; that it was delivered to Matthew Perry in person, and that Nathan Perry was not present when the check was delivered to Matthew Perry; that Mr. Samuel Weinberg in conversation with Markle repeatedly referred to said action as " our case," intending thereby to convey that he had a financial interest in the same; that Weinberg informed him that he had retained counsel to bring the action upon an agreement that he would testify in the action and receive one-third of any judgment recorded therein.

(b) Two bookkeepers, who were in the employ of the defendant at the time when the sugar contract is alleged to have been made and the check delivered, will testify that they were present when the check was delivered; that Nathan Perry was not in the office, and in fact was at no time in the defendant's office; that Matthew Perry was, on or about that period, several times in the office of the defendant with respect to sugar deals; that on one such occasion Nathan Perry received a check for $500, and that shortly thereafter he visited the defendant and offered to deliver certain sugar for which $500 had been paid to him; that the plaintiff stated to him that he did not wish to accept that sugar.

The complaint further alleges that the evidence above set forth was not known to the plaintiff, although he had used reasonable diligence in the preparation of his case.

One of the witnesses above referred to resides out of the state and so resided at the time of trial, and her testimony could not then be obtained; also that the testimony of Morris Puklin before mentioned was untrue; that the judgment obtained was by means of false testimony, and the alleged corrupt agreement with Weinberg.

Plaintiff claimed by way of relief an injunction restraining levy of execution in the original suit, and a new trial.

Defendant demurred to the complaint as follows: (1) It appears from the complaint that the alleged newly discovered evidence could have been obtained by due diligence and presented at the former trial. (2) It appears from the complaint that the newly discovered evidence is offered solely for the purpose of impeaching the testimony of witnesses offered at the former trial. (3) It appears from the complaint that the newly discovered evidence is merely cumulative in character, and would not have affected the result of the jury's verdict. (4) The complaint does not set forth sufficient facts upon which to base a petition for a new trial.

The court sustained the demurrer for the reasons therein stated and the plaintiff assigns error in this action of the court, and particularly in holding...