Raffel v. Clark

• Decision Date: 20 December 1913
• Citation: 89 A. 184,87 Conn. 567
• Court: Connecticut Supreme Court
• Parties: RAFFEL v. CLARK et al.

89 A. 184

87 Conn. 567

RAFFEL

v. CLARK et al.

Supreme Court of Errors of Connecticut.

Dec. 20, 1913.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by Louis M. Raffel against George B. Clark and others for foreclosure of mortgage on land. From a judgment for deficiency against defendant Curtis, he appeals. Reversed in part.

James C. McICuight and U. G. Church, both of Waterbury, for appellant. Omar W. Flatt, of Milford, for appellees Clark and Howshield. Walter E. Monagan, Terrence F. Carmody, and Henry W. Minor, all of Waterbury, for appellee Raffel.

BEACH, J. The complaint alleges and the trial court has found that on May 19, 1911, the defendants Clark and Howshield mortgaged the land in question to the plaintiff as security for an indebtedness of $4,200, evidenced by their promissory note; that the note became due and payable on demand by reason of a default in the payment of the interest due May 19, 1912; that in the meantime the land had been conveyed to the defendant Curtis by a deed, dated December 28, 1911, reciting that the grantee assumed and agreed to pay the mortgage debt; that Curtis was in possession under the deed, and the note was still owned by the plaintiff and is due and unpaid, together with interest from November 19, 1911. Thereupon the court rendered judgment against all the defendants for a foreclosure by sale; and. as the land is found to be worth but $2,000, the judgment as rendered lays the foundation for a deficiency judgment against the defendant Curtis, as prayed for in the complaint, under section 4140 of the General Statutes.

The defendant Curtis, hereinafter called the appellant, denied that he had agreed to assume and pay the mortgage debt, and in a third defense, and in a cross-complaint against the defendants Clark and Howshield, alleged that he was induced to trade off an automobile for certain wagons and for the equity in the land by false and fraudulent misrepresentations of the value of the lot, and was further defrauded in that Clark and Howshield contrived to get the deed on record in bis presence, but without his knowledge that it contained an assumption clause, for the purpose of saddling him with their debt which he had not agreed to pay. The defendants Clark and Howshield appeared and made no defense to the complaint but answered the cross-complaint denying its allegations. The appellant appeals from the action of the court in finding the issues of fraud in favor of Clark and Howshield and in finding that the appellant assumed and agreed to pay the mortgage debt. All the evidence is certified up in support of motions to correct the finding.

Taking up first the alleged fraudulent misrepresentations of value. The trial court has found proven a number of subordinate facts from which it might be possible to construct the conclusions of cause and effect necessary to support a charge of fraud. But the evidence does not justify us in holding that no other conclusions were legally inferable from such subordinate facts.

A close examination of the testimony of Clark and Howshield shows that some, but not all, of the material representations of fact as to value were false, and it might be concluded as a necessary inference from the fact and time of their assertion that they were intended to be relied upon by the appellant. But it does not follow as an inference of law that the appellant must have acted in reliance thereon, although he so testified, for it appears that he inspected the premises, that he lived in Waterbury, and that other obvious sources of information were open to him. The motions to correct the finding as to the issues of fraudulent misrepresentation of value are denied. The other reasons of appeal relating to the conclusion of the trial court that ...