Valente v. Porto

• Court: Connecticut Supreme Court
• Writing for the Court: RORABACK, J.
• Citation: Valente v. Porto, 93 Conn. 146, 105 A. 338 (Conn. 1918)
• Decision Date: 17 December 1918
• Parties: VALENTE v. PORTO.

105 A. 338

93 Conn. 146

VALENTE v. PORTO.

Supreme Court of Errors of Connecticut.

December 17, 1918

Appeal from Superior Court, New Haven County; Howard J. Curtis Judge.

Action by Nunziate Valente against Angelo Porto, for an accounting brought to the superior court, which referred it to a committee, who heard and reported the facts, and found that $13,877.40 was due from the plaintiff to the defendant. The plaintiff filed a remonstrance to the report of the committee, to which defendant's demurrer was sustained the committee's report accepted, and judgment rendered for the defendant for costs, from which the plaintiff appeals. No error.

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

Philip Pond, of New Haven, for appellee.

RORABACK, J.

The only question here presented is as to the sufficiency of the plaintiff's remonstrance. The remonstrance is based upon nine different grounds. Paragraphs 1, 3, 5, 6, 7, 8, and 9 in substance, state that the evidence did not warrant the conclusion of the committee. More in detail, paragraph 3 states that certain items constituting the amount of $8,306.71, and contained in the report, " were not proven by any certain, definite, or positive evidence." In paragraph 5 of the remonstrance it is averred that a certain payment of $5,400 " is not, under the evidence, a charge against the plaintiff, and was not proven by certain, definite, and positive evidence." In paragraphs 1, 6, 7, 8, and 9 of the remonstrance the grounds thereof are in effect for the same reasons as those contained in paragraphs 3 [105 A. 339] and 5 just stated. Not one of these paragraphs states a good cause for a remonstrance. It was not enough to say in these objections that the conclusions of the committee were not supported by the evidence, when no part of the evidence was before the court. Decker v. Mann, 80 Conn. 86, 66 A. 884; Fox v. South Norwalk, 85 Conn. 237, 82 A. 642; Hoyt v. Pomeroy, 87 Conn. 48, 86 A. 755; Ferguson v. Cripps, 87 Conn. 241, 245, 87 A. 792.

The plaintiff in paragraph 2 of his remonstrance challenges paragraph 6 of the report of the committee because " the bonus charged on said mortgage is not a proper charge against the plaintiff, or the interest chargeable under said mortage is not a proper charge against the plaintiff, and because the report of the committee as amended credits the plaintiff with the principal sum of $5,000 of said mortgage." Paragraph 6 of the committee's report states that:

" Some time subsequent to November 26, 1912, Nunziate Valente borrowed $5,400 from Isic Kaufman, receiving in cash $5,000 and allowing a bonus of $400. Said sum of $5,000 was turned over to A. Porto, and used by him on said building. Payment of said sum of $5,400, so borrowed by Nunziate Valente from Isic Kaufman, was guaranteed by Angelo Porto, and was paid to said Kaufman by Angelo Porto from the proceeds of a savings bank mortgage."

The word " bonus" as used by the committee in its report does not require an inference that this sum of $400 paid by the plaintiff was without consideration and in violation of law. Smith v. Crockett Co., 85 Conn. 288, 82 A. 569. It does not appear that the plaintiff made any claim or offered any evidence to show that this bonus was paid for an unlawful purpose, or that it was void as contrary to public policy. In the absence of any evidence, claim, or finding upon this subject, it cannot now be said that the trial court erred in not holding that this agreement to pay a " bonus" was illegal and separable from that requiring the payment of $5,000. If we should assume that this agreement to pay a " bonus" was illegal, it is a little difficult to understand how this defendant can be affected by this fact. The plaintiff borrowed the money of and agreed to pay the " bonus" to a third person. The defendant was not connected with this contract, except as he agreed to guarantee the payment of the note. It does not appear that he had any knowledge that this note was tainted with illegality, if any existed.

The plaintiff remonstrates to paragraph 8 of the report of the committee because " the mortgage of $7,500, mentioned in said paragraph, was a mortgage given by the plaintiff to the defendant as security for certain guaranties and indorsements, which agreements in reference to said...