Trotta v. Prete
| Decision Date | 12 December 1930 |
| Citation | 152 A. 585,112 Conn. 442 |
| Court | Connecticut Supreme Court |
| Parties | TROTTA v. PRETE. |
Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.
Action by Orlando Trotta against Ralph Prete to recover damages for breach of an agreement by the defendant to assume and pay certain notes secured by mortgages on real estate sold to him by the plaintiff. Judgment for defendant, and plaintiff appeals.
No error.
Harry L. Edlin and Benjamin F. Goldman, both of New Haven, for appellant.
Alfonse C. Fasano, John Prete, and Bernard Pellegrino, all of New Haven, for appellee.
Argued before MALTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.
On March 2, 1927, the plaintiff sold and transferred to the defendant, for $9,000, certain real estate in East Haven subject to a first mortgage of $5,500, which was given by a former owner and assumed by the plaintiff; a second mortgage originally for $2,000, given by the plaintiff to Martin Olsen and subsequently assigned by him to William H. Scranton; and a third mortgage, originally for $550, to Olsen, assigned to Street. As a part of the consideration for the conveyance to him the defendant assumed and agreed to pay these mortgages, the amount then unpaid on the second mortgage being $1,500, and on the third $400, together with taxes on the list of 1926.
The defendant became in default on the second mortgage note, and Scranton, the holder, commenced a foreclosure action, and on June 22, 1928, obtained a judgment of foreclosure for $1,361.40 and his costs. All parties in interest received law days, including the plaintiff and defendant, but none of them redeemed the property, and on July 12, 1928, title became absolute in Scranton. Scranton moved for a deficiency judgment, and appraisers were appointed and filed an appraisal, but on August 15, 1928, before a deficiency judgment was entered, Scranton sold the property to Trotta, who paid him the amount of the foreclosure judgment and various expenses which they agreed upon. Trotta also paid Street, who had been foreclosed out, $500. Thereafter Trotta endeavored to pursue, in Scranton's name, the claim for a deficiency judgment against Prete, but the court struck all the deficiency proceedings from the file. Then, after attempting unsuccessfully to file a cross-complaint in the foreclosure action, seeking to recover a deficiency judgment against Prete. Trotta, in November following, brought the present action.
In addition to the foregoing facts the trial court found that the amount received by Scranton through the sale to Trotta was sufficient to extinguish the indebtedness on his mortgage and all expenses; that the transaction was an ordinary sale, Trotta purchasing because he believed the property worth more than he paid, although he also entertained a hope that he might recover something from Prete; that the value of the property at the time of the sale was $8,500, which was more than the plaintiff paid Scranton and Street. These findings are justified by evidence or, permissible inference therefrom, and no corrections can be granted which would affect the material conclusions that the mortgage indebtedness to Scranton had been satisfied and discharged; that the purchase by the plaintiff was a speculation and made primarily for that purpose and not to protect himself from a deficiency judgment; and that, since the properly was worth more than he paid the plaintiff lost nothing and has suffered no damage.
The further assignments of error relate to the applicable principles of law. The sale and transfer of the premises by the plaintiff to the defendant, the latter assuming and agreeing to pay the mortgages thereon, did not affect the right of any mortgagee to pursue his personal remedy against the plaintiff by an action on the note. As between the plaintiff and the defendant, by the assumption agreement the latter became the principal, and the plaintiff the surety with a right of recourse against the defendant in case he was compelled to pay the debt. Chauser v. Cama, 106 Conn. 390, 393, 138 A. 157; Cacavalle v. Lombardi, 106 Conn. 339, 138 A. 155; Barnes v. Upham, 93 Conn 491, 107 A. 300, 6 A.L.R. 494. The undertaking of the defendant to the plaintiff was that, if he should fail to pay any mortgage note in accordance with his contract, and in consequence thereof, the plaintiff was compelled to satisfy it, then the defendant would make good the resulting damage. Foster v. Atwater, 42 Conn. 244, 252; 2 Jones on Mortgages ...
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