Seymour Trust Co. v. Hershowitz

• Decision Date: 23 December 1925
• Citation: 103 Conn. 532,131 A. 399
• Court: Connecticut Supreme Court
• Parties: SEYMOUR TRUST CO. v. HERSHOWITZ.

131 A. 399

103 Conn. 532

SEYMOUR TRUST CO. v. HERSHOWITZ.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Action by the Seymour Trust Company, indorsee, against Harry Hershowitz, the maker, of a promissory note, was referred to a committee, and the court accepted the report and rendered a judgment for plaintiff, and defendant appeals. No error.

Charles S. Hamilton, of New Haven, for appellant.

Robert J. Woodruff and Avery Tompkins, both of New Haven, for appellee.

MALTBIE, J.

The plaintiff in this action is seeking to recover as indorsee for value of a note made by the defendant to the Holt Trading Company. The answer admitted that the defendant signed the note, but denied the other allegations of the complaint, and it then set up in an involved manner certain special defenses, the gist of which was that the note, though payable to the Holt Trading Company, was the same in effect as though made payable to one Jerome, who was its president and treasurer, and who had sole management of it; that it was executed entirely for the accommodation of Jerome, and was without any consideration or at least that there had been a total failure of consideration; and that the plaintiff took the note with full knowledge of the circumstances under which it was executed. Issue being joined, the case was referred to a committee for hearing. He reported that the plaintiff was an innocent holder of the note, for value, having given $2,500 consideration for it, and that there were in fact no equities or disabilities against it. To this report the defendant filed a remonstrance. The first two grounds set forth that the committee found, " without evidence to support" its conclusion, that the plaintiff gave $2,500 consideration for the indorsement of the note to it, and that it was an innocent holder for value. The third, fourth, and fifth grounds allege that the committee found certain facts without " any sufficient evidence" to support them. The sixth ground alleges the committee's failure to find that the note was executed in pursuance of a certain agreement and conversation which is not otherwise set up than by means of a short excerpt from the defendant's testimony before the committee, given in the form of brief questions and answers, which was alleged to be uncontradicted; and the remaining grounds allege rulings of the committee claimed to be erroneous. The plaintiff demurred to the remonstrance and the court held that all grounds except the first six were insufficient in law. Issue was then joined upon the first six, and they were overruled, and judgment given for the plaintiff.

The third, fourth, and fifth grounds might well have been overruled as insufficient in law. It is not a proper ground of remonstrance that a fact is found " without any sufficient evidence" to support it. The rules of court permit a remonstrance claiming corrections of the nature of those here sought only upon the grounds that the report " contains a material fact found without evidence or omits to find a material fact which is admitted or undisputed." Practice Book 1922, p. 266, § 102; Goodrich v. Stanley, 24 Conn. 613, 619; Ferguson v. Cripps, 87 Conn. 241, 244, 87 A. 792; Prendergast v. Drew, 103 Conn. 88, 90, 130 A. 75. The sixth ground was also improper in form. The report of a committee should state " the facts found and not the evidence or excerpts from the evidence" (Practice Book 1922, p. 264, § 98); and a remonstrance which seeks a finding of an additional fact by the committee should follow a like form. Nor is an allegation that certain testimony was uncontradicted the equivalent of a statement that the fact testified to was admitted or undisputed. Dexter Yarn Co v. American Fabrics Co., 102 Conn. 529, 540, 129 A. 527.

In his appeal, however, the defendant has abandoned these grounds of remonstrance, and claimed that, the committee having died and his testimony no longer being available, the court could not proceed to determine the issue of fact raised by them and, in particular, had no right to use the stenographic notes of the testimony before the committee for that purpose. These claims are not before us upon the record, because they were not presented to the trial court by any remonstrance or other pleading. If they were properly upon the...