Wesley v. DeFonce Contracting Corp.

• Decision Date: 01 February 1966
• Court: Connecticut Supreme Court
• Parties: Evelyn G. WESLEY v. The DeFONCE CONTRACTING CORPORATION et al.

Page 811

216 A.2d 811

153 Conn. 400

Evelyn G. WESLEY v. The DeFONCE CONTRACTING CORPORATION et al.

Supreme Court of Connecticut.

Feb. 1, 1966.

John W. Colleran, New Haven, with whom, on the brief, was Dennis N. Garvey, New Haven, for appellants (defendants).

Richard H. Simons, Milford, with whom was Gerald F. Stevens, Milford, for appellee (plaintiff).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

ALCORN, Associate Justice.

By an amended complaint the plaintiff seeks to recover in an action for money loaned. The defendants are the named corporation and Thomas J. DeFonce. No point is made, in this appeal, of the fact that the amended complaint alleges that the 'defendant' borrowed the sum sued for in each of the two counts. Nor is any issue made of the fact that the judgment is that the plaintiff recover from the 'defendants'. Both defendants appeal solely on the basic ground that promissory notes which entered into the transaction were usurious. Doubtless the discrepancy between the complaint and the judgment is ignored by the parties because the corporation appears to be, at least in this transaction, the alter ego of Thomas J. DeFonce, who obtained the loans from the plaintiff. We have decided to treat the case as the parties have done and will refer to Thomas J. DeFonce as the defendant.

The case presents primarily an issue of fact, and, as might be expected in a court trial of such an issue, the defendant makes an extensive attack on the finding. No facts can be added to the finding. Practice Book § 628; Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 418, 207 A.2d 732. One requested addition is but a rephrasing of a conclusion of the court. Certain findings of subordinate facts must be stricken because the plaintiff has failed to supply evidence to support them in the appendix to her brief. Owens v. Doyle, 152 Conn. 199, 209, 205 A.2d 495; Engelke v. Wheatley, 148 Conn. 398, 411, 171 A.2d 402. Certain conclusions must go out since they are not supported by the subordinate facts. The attacks on the finding which have not been briefed are treated as abandoned. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 659, 211 A.2d 687; Dupuis v. Zoning Board of Appeals, 152 Conn. 308, 310, 206 A.2d 422.

From the finding, as corrected, the following facts appear: In June and July, 1963, the defendant and four corporations organized and controlled by him were indebted to the plaintiff and were in arrears in their payments. A plan had been devised by which the defendant corporation, of which DeFonce was also president, was attempting to pay these debts. The defendant corporation was, however, in desperate financial circumstances and in need of money to carry on a work project in which it was engaged. It could not obtain bank financing, and $9150 was necessary to keep it in business. There was little likelihood that, unless that sum could be borrowed, the debts which the defendant and his other corporations owed the plaintiff could be repaid.

The plaintiff was seventy-eight years old. She regularly employed an attorney who had prepared notes in her prior transactions with the defendant. On July 1, 1963, in response to the urgings of the defendant for a further loan, and after he had convinced the plaintiff that it was unnecessary to consult her attorney, the plaintiff, without the advice of counsel, loaned the defendant corporation $4750 to be repaid in thirty days. Thereupon, the defendant had a promissory note for $5000 prepared, dated July 1, 1963, and payable to the plaintiff in one month 'with interest'. The defendant signed the note as president of the defendant corporation and delivered it to the plaintiff along with a postdated $5000 check of the defendant corporation.

On July 9, 1963, the defendant again approached the plaintiff and requested a further loan with which to meet his payroll and stay on the job. He again persuaded the plaintiff not to consult her attorney and, without the advice of counsel, the plaintiff made a further loan of $4400. Following his earlier procedure, the defendant had a promissory note drawn for $4550 dated July 9, 1963, and payable to the plaintiff in ten days 'with interest'. He signed the note in the same say as before and delivered it to the plaintiff along with a postdated check of the defendant corporation for $4550.

The plaintiff later attempted to cash the checks, but the bank refused to honor them for lack of funds in the account. The defendants have paid nothing to the plaintiff on account of either loan. In September, 1963, the plaintiff gave the notes to her attorney for collection, and he brought suit on the notes.

The notes were not usurious on their face, and there is no finding that the attorney knew that the amount loaned differed from the face amount of the notes. The defendant filed an answer denying the loans and a special defense that the notes were usurious. Thereupon the complaint was amended to state a case for money loaned and seeking recovery of the amount actually loaned with legal interest. The defendant again denied the loan and pleaded a special defense of usury.

The case was tried on the issues formed by the amended complaint, the answer and the defense of usury. The court concluded that the plaintiff had loaned the 'defendants' $9150, that the plaintiff sought to recover only that amount with interest, that in accepting the promissory notes and checks prepared by the defendant the plaintiff did not intend to exact usurious interest, and that the plaintiff was entitled to recover the amount loaned with legal interest. The amount actually loaned is not disputed. The plaintiff's intent in the transaction is the only question in issue.

The amended complaint, since it is complete in itself and entirely supersedes the original complaint, should more accurately be termed a substitute complaint. Lancaster v. Bank of New York, 147 Conn. 566, 576, 164 A.2d 392. A such, its voluntary filing operated as a withdrawal of...