Spitz v. Abrams
| Decision Date | 06 June 1941 |
| Citation | 20 A.2d 616 |
| Court | Connecticut Supreme Court |
| Parties | SPITZ v. ABRAMS. |
Appeal from Superior Court, New London County; Patrick B. O'Sullivan, Judge.
Action for an accounting by Ezekiel Spitz against Max N. Abrams. The court ordered an accounting and subsequently rendered judgment for plaintiff on report of auditor, and the defendant appeals.
No error.
Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.
Charles V. James and Arthur M. Brown, both of Norwich, and Samuel M. Gruskin, of New London, for appellant.
Charles Suisman, of New London, for appellee.
The complaint in this action alleged that the plaintiff and defendant were owners in common of a certain piece of land in New London and that the defendant had received large sums as rentals from the land, for which he had failed to account to the plaintiff; and it prayed an account and judgment for the amount found due. The answer admitted the ownership of the land in common but alleged that the defendant had fully accounted. An interlocutory judgment for an accounting was rendered, in which an auditor was appointed. While his report is not as complete a statement of the facts as would be desirable, the following situation is fairly apparent: The defendant bought the property for the joint account of the parties and conveyed an undivided one-half interest to the plaintiff; the property was involved in a partnership enterprise conducted by them; and the defendant received the rents from and paid all expenses pertaining to the property and generally handled the moneys of the partnership. The auditor, in taking the account, reviewed the entire partnership dealings with reference to the land and that is the basis of the account stated in his report. He found that the plaintiff was entitled to recover a substantial sum from the defendant. The latter remonstrated against the acceptance of the report upon the ground that, as the complaint claimed only an accounting of the rents received from the property and the report was a general and complete account of all transactions between the parties relating to it, the report went beyond the issues made by the pleadings. The trial court overruled the remonstrance and entered judgment upon the report. From this judgment the defendant has appealed.
In an action of account, as in any other, the judgment cannot ordinarily rest upon the determination of issues not fairly within those raised by the pleadings. Buckley v. Kelly, 70 Conn. 411, 417, 39 A. 601; 1 C.J.S., Accounting, § 38, p. 677. In such an action, however, the transactions between the parties with reference to the particular matter alleged as a basis of the accounting may require for its proper determination an inquiry into matters not alleged where the two are so interwoven that a full accounting must take them into consideration. Butler v. Cornwall Iron Co., 22 Conn. 335, 359; Lapenta v....
To continue reading
Request your trial
-
Jaffe v. State Dep't Of Health.
...must be deemed to have waived before the board any claim that the inquiry was limited to the statements in that summary. Spitz v. Abrams, 128 Conn. 121, 124, 20 A.2d 616; Conn.App.Proc. § 28. There is no error. In this opinion the other judges concurred except DICKENSON, J., who, by agreeme......
-
Howarth v. Northcott
...99. The parties may, however, by consent, enlarge the scope of the litigation to include matters not expressly pleaded. Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616. If the defendant considered that the judgment went beyond the issues litigated, the time to have appealed was within two ......
-
Simmons v. Sorrentino
...party has never been properly brought before the court and hence the court lacks jurisdiction to determine them.' Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616, 617. The majority opinion regards the allegations of fraud as surplusage and deems the remaining allegations sufficient to supp......
-
Doublewal Corp. v. Toffolon
...by consent, enlarge the scope of the litigation to include issues not raised in the pleadings." (Citations omitted.) Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616 (1941); see also 1 Stephenson, Conn.Civ.Proc. (2d Ed.1970) § In the cases before us, the plaintiffs' amended complaints did i......