Solari v. Seperak

• Decision Date: 10 November 1966
• Citation: 154 Conn. 179,224 A.2d 529
• Court: Connecticut Supreme Court
• Parties: Helen SOLARI et al. v. Edward SEPERAK.

Page 529

224 A.2d 529

154 Conn. 179

Helen SOLARI et al. v. Edward SEPERAK.

Supreme Court of Connecticut.

Nov. 10, 1966.

Burton J. Jacobson, Bridgeport, with whom, on the brief, was Alfred A. D'Amore, Bridgeport, for appellant (defendant).

John G. Huchko, Bridgeport, for appellees, plaintiffs).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

On or about March 10, 1960, the plaintiffs, Louis H. and Helen Solari, agreed to sell a restaurant known as the Parkwood, located at 316 Wood Avenue in Bridgeport, to the defendant, Edward Seperak, and to Walter Kaslow for the sum of $22,000. The agreement, when reduced to writing, recited a consideration of $18,000, despite the fact that the true consideration for the sale of the restaurant was $22,000. It was at the defendant's suggestion that the true consideration was not contained in the agreement. The $18,000 consideration recited in the agreement was paid by the defendant and Kaslow to the plaintiffs, and there remained an unpaid balance due the plaintiffs of $4000. A check was issued by the defendant postdated July 5, 1960, in the amount of $400 payable to cash. It was delivered by the defendant on July 1, 1960, in part payment of the sale of the restaurant and it was issued for value received. When the check was presented for payment on July 5, the Connecticut National Bank refused to honor it because of insufficient funds. The plaintiffs are still the holders of the check, and it has not been paid.

Thereafter the plaintiffs brought this action on the check. The defendant filed a general denial and two special defenses. In the first special defense, he alleged that at the time of the written agreement of sale for the sum of $18,000 there was a collateral 'verbal' agreement entered into between the parties whereby an additional sum of $4000 was to be paid; that the additional sum was for the purpose of concealing the true price from the United States government so that the vendors could avoid payment of taxes to the federal government; and that the collateral agreement was void as against public policy. In the second special defense, he pleaded payment of said sum of $4000 and alleged that the check was not intended to be used but was merely an accommodation to the plaintiff Louis H. Solari so that he would not have to account to his wife, the plaintiff Helen Solari, for the payment of that sum. The trial court rendered judgment for the plaintiffs to recover the principal sum of $4000 plus $1020 interest, making a total of $5020.

The defendant urges six grounds of error. The first assignment of error claims failure on the part of the trial court to find certain subordinate facts relating to defendant's special defenses which were admitted or undisputed. These various facts, if found, would indicate (1) that the reason for the oral agreement, entered into between the plaintiffs and the defendant, was to enable the plaintiffs to conceal the real purchase price from the federal government, (2) that $4000 in cash was in fact paid to the plaintiff Louis H. Solari, and (3) that the defendant gave Solari a check for $4000 merely to permit him to show it to Mrs. Solari with the understanding that it would be returned to the defendant several days later. Obviously, if these facts were found, the case would take on an entirely different complexion.

This court has the power to correct the finding where it fails to include admitted or undisputed facts. Practice Book § 627; Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. A fact, however, is not admitted or undisputed simply because it is uncontradicted. Practice Book § 628(a); Mercier v. American Refractories & Crucible Corporation, 151 Conn. 559, 560, 200 A.2d 716; see Goldblatt v. Ferrigno, 138 Conn. 39, 41, 82 A.2d 152. In the instant case, there was no failure on the part of the trial court to include any paragraphs of the draft finding which were admitted or undisputed, as set forth under our rule in cases such as Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634.

In the second assignment of error the defendant claims that the trial court found without evidence (1) that the defendant agreed to deposit money in the checking account after the check was dishonored by the bank, (2) that it was at the suggestion of the defendant that the true consideration was not contained in the agreement, (3) that defendant never paid the $4000, and (4) that the plaintiffs intended to pay income taxes on any profit realized from the sale of the restaurant based on the true consideration.

It is a well-settled rule that this court will not look beyond the appendices to the briefs in order to find supporting evidence. Practice Book §§ 645, 721. 'It is the duty of both parties to print all material evidence in the appendices to their briefs.' Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753, 755; Cushing v. Salmon, 148 Conn. 631, 632, 173 A.2d 543;...