Summa v. Dereskiawicz

• Decision Date: 17 December 1909
• Citation: 82 Conn. 547,74 A. 906
• Court: Connecticut Supreme Court
• Parties: SUMMA v. DERESKIAWICZ.

74 A. 906

82 Conn. 547

SUMMA

v. DERESKIAWICZ.

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from District Court of Waterbury; George H. Cowell, Judge.

Action by Paul Summa against Petraro Dereskiawicz to recover a commission for securing a real estate purchaser. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Charles W. Bauby, for appellant. Dennis J. Slavin, for appellee.

PRENTICE, J. Most of the assignments of error are not well made. The record is silent concerning the subject-matter of one presenting a question as to the jurisdiction of the court. Other assignments, to the effect that the court erred in its rulings upon the admission of testimony and in certain remarks made in the presence of the jury during the progress of the trial, both as set forth in the transcript of testimony sent up in connection with the appeal, either under section 797 of the General Statutes of 1002, or for the purposes of the assignment of error in the denial of a motion for a new trial for verdict against evidence, and not otherwise indicated, have no proper foundation, and are not distinctly pointed out, as is required. Counsel seem to have assumed that the presence in the record of this transcript furnishes such a foundation. The transcript is before us only for the purposes of a correction of the finding, or as an incident of the appeal from the denial of the motion for a new trial, and its sole office is in those connections. It forms no part of the record appropriate to the appeal in its other aspects. In so far as the rulings and conduct of the court in the course of a trial are to be made the subject of review, they must be first incorporated into a finding, and thus brought into the record. The transcript of testimony, if it chances to be before us for its legitimate purpose, is not before us as a substitute for a finding, and cannot be made to perform the office of a finding. Dennison v. Waterville Cutlery Co., 80 Conn. 590, 598, 69 Atl. 1022; Cadwell v. Canton, 81 Conn. 288, 291, 70 Atl. 1025. Error is also assigned of the court's refusal to charge as requested in the defendant's fourth request. The record does not inform us what that request was.

One part of the charge as made is, however, distinctly pointed out as embodying an erroneous statement of the law. The plaintiff, a real estate agent, is seeking to recover a commission for obtaining a purchaser for a piece of land owned by the defendant, and upon terms named by the latter. He can recover such commission only upon the strength of an express contract, or of the existence of such circumstances that the law will imply therefrom a contract to pay for his services. Upon the trial he in form claimed an express contract, which the defendant denied, but his main reliance was placed upon an implied one. It was important, therefore, that correct and adequate instructions should be given in respect to that aspect of the case. The law as to when an implied agreement to pay a broker's commission will be recognized is well settled, and was clearly stated in Weinhouse v. Cronin, 68 Conn. 250, 253. 36 Atl. 45. Instead of instructing the jury, in substance, as there stated, the court in the passage criticised told them, in substance, that the only question for them to...