Palmer v. Frost , 86 Conn. 100 ( 1912 )

The plaintiff, within the statutory time, filed his appeal, assigning for error the court's refusal to set aside the verdict. He also requested a finding for the purpose of questioning the correctness of the judge's charge. After the finding had been filed, the plaintiff amended his reasons of appeal by adding thereto two assignments of error founded upon claimed errors in the charge. The original appeal was properly taken to the April term, 1912, of this court held at Bridgeport. The finding was not completed until that term was past. The plaintiff had ten days after the filing of the finding within which to take an appeal upon questions arising thereon of which he had given notice in his request for a finding. His amendment was filed within that period. Two appeals were unnecessary. The second appeal was properly combined with the first by way of amendment. Harris v. Ansonia,73 Conn. 359, 367, 47 A. 672. Such amendment is merely a consolidation of two appeals and is not within the rule (Practice Book, p. 279, § 39) that, without leave of court, amendments to reasons of appeal shall not be filed later than six days before the opening of the court to which the appeal is taken. The defendant's motion that the amendment be stricken out of the record upon the ground that it was not filed in this court more than six days before the opening of the April term is denied.

The evidence in the case is not made a part of the record. We have no means of determining, therefore, whether the verdict was against the evidence. The court has incorporated into its finding the substance of certain remarks made by the defendant's counsel in arguing the case to the jury. The plaintiff claims that the court erred in refusing to set aside the verdict as being the result of "prejudice, bias, passion, and sympathy" created in the minds of the jurors by these remarks. The plaintiff's counsel made no objection to the remarks at the time they were uttered, nor until after the verdict was rendered. The court of its own motion, referring to this language in the charge, told the jury that, in its opinion, it was "calculated unduly to excite your sympathy and your prejudice," and carefully cautioned them that they were to decide the case upon the evidence alone and that their verdict should not to any extent rest upon prejudice or sympathy.

We do not disagree with the trial court as to the tendency of the remarks. They did not, however, so far as appears, misstake the evidence, and were used in the discussion of subjects proper to be brought to the jury's attention. They consisted of the counsel's characterization of the plaintiff and some of his witnesses and in comparing their conduct to that of thimble-riggers or three card monte men. An intelligent jury would hardly be carried beyond the evidence by such language after they had been cautioned against it. The possibility or probability of their having been so carried away could more readily be determined with the evidence before us. So far as appears, the verdict may have been fully supported by the evidence. In the absence of the evidence, we are bound to believe that it was, for the trial court refused to set it aside, and the appeal upon that ground has not been pursued. The court also, with the evidence before it, refused to set the verdict aside as being the result of prejudice or sympathy aroused by the remarks of counsel. We cannot say that it erred in so doing.

The defendant upon the trial claimed that the note in suit had been obtained from her by fraud, the plaintiff having by false representations persuaded her to execute and deliver it as a part of the capital stock of a copartnership which the plaintiff at the time formed with her son, whereby the latter was to put in $8,000 capital, to consist of a livery stock then belonging to the defendant, which she permitted him to take and put in, and $4,500 in cash, and the plaintiff was to put in $8,000, consisting of a livery stock which he then possessed and for which he falsely and fraudulently represented that he had been offered $8,000 and was worth that sum.

By his amended reasons of appeal the plaintiff assigns for error that the court neglected to charge the jury "that notwithstanding that the plaintiff made false representations to the defendant, he, nevertheless, could recover the difference between the value of the personal property contributed by him, and the amount of her note, if the jury found that such value of the goods was greater than the amount of the note." It is not claimed that any request was made that the court should so charge. But had there been, it could not properly have been granted by the court. The argument goes upon the ground that the note was given for the purchase of the plaintiff's property, and that only a partial failure of consideration was shown. But the plaintiff's property was contributed to a copartnership of which he is a member. The defendant's son contributed stock worth $3,500 toward the same capital. If it were true, as claimed, that the defendant stood in the position of a purchaser of the plaintiff's property, the test of whether there was a failure of consideration, in whole or in part, for the note, would not be whether the property exceeded in value the amount of the note, but whether it was equal to the amount of the note together with the personal property which the son contributed to the partnership. In such case, the amount of the recovery upon the note would be the amount, not exceeding the face of the note, by which the plaintiff's property exceeded that which the son contributed.

But the defendant was not claiming a failure of consideration in whole or in part. She claimed that the note had been obtained from her by fraud, and was void. The part of the charge given, to which exception is taken by the assignments of error, was adapted to this claim of the defendant. The jury were correctly told that in such a case "fraud vitiates all contracts of every kind, verbal, written, sealed and unsealed. To this rule there is no exception as between the original parties to the contract, and a contract or note obtained by fraud cannot be enforced against the maker or signer of such note by the payee thereof." Feltz v. Walker,49 Conn. 93, 98. In such a case there is, as between the parties, no note. The rule is different where the purchaser of goods is sued upon a note given for the price under circumstances which warrant him in rescinding the contract. He may, in such a case, without having rescinded, set up the deceit in defense and reduce the plaintiff's recovery upon the note by the amount suffered in consequence of the deceit.

There is no error.

In this opinion HALL, C. J., PRENTICE AND RORABACK, Js., concurred.