Russell Electric Co. v. Bassett , 79 Conn. 709 ( 1907 )

Upon the trial the defendants claimed that notwithstanding there was a valuable consideration for the note and mortgage given by Mrs. Bassett to Russell, yet the plaintiff could not recover of Mrs. Bassett the full amount of the note, but only such portion thereof as would remain after deducting the $700 which it appeared that Russell had earned in other employment.

The trial court did not err in overruling this claim. Upon the facts as found by the court, the note in suit evidenced a direct indebtedness from Mrs. Bassett to Russell. This indebtedness was created on November 19th, 1904, by a direct contract between Mrs. Bassett and Russell, based upon a valuable consideration and entered into by the parties under advice of counsel and with full knowledge of the facts. All the agreements of Russell, which constituted the consideration on his part, have been fully performed. There was no promise on his part to earn money in other employment, or to credit Mrs. Bassett, upon her note to him, the amount of any money he might so earn. It is well settled that in contracts of this kind, where the consideration for a promise is in part an act done by the promisee, at request of the promisor, by which the former sustains any loss, trouble or inconvenience, and of a benefit to him who makes the promise, courts of law or of equity will not, in the absence of fraud, interfere with the valuation which the parties themselves placed upon the considerations that induced the contract. Sage v.Wilcox, 6 Conn. 81, 83; Clark v. Sigourney, 17 id. 511, 517;Clark's Appeal, 57 id. 565, 572, 19 A. 332; Mascolo v.Montesanto, 61 Conn. 50, 54, 23 A. 714.

The plaintiff having proved the execution and delivery of the note and mortgage by Mrs. Bassett to Russell and the assignment of the note and mortgage to the plaintiff, the value of the property mortgaged, the amount due upon the note, and that the same had not been paid, rested his case. The defendants then moved that the complaint be dismissed on the ground that no consideration for the note had been proved. The court properly overruled this motion.

The other question of law presented by the appeal, namely, that the court erred in deciding upon the facts appearing in the finding that there was a sufficient consideration for the note and mortgage in question to support the action, is disposed of by the cases above cited.

It is patent from the record and the irrelevant reasons for appeal assigned by counsel, that the real grievance of the defendant is that the trial court, in passing upon the credit of witnesses and the weight of conflicting evidence, reached conclusions of fact different from those the counsel for the defendant think the court ought to have reached. This court cannot retry upon the testimony facts thus settled by the trial court. Hourigan v. Norwich, 77 Conn. 358,369, 59 A. 487.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.