DocketNumber: No. 5527
Citation Numbers: 76 F.2d 61
Judges: Buffington
Filed Date: 2/23/1935
Status: Precedential
Modified Date: 7/23/2022
In the court below Michele Ajello, Sr., brought suit against Concetta Siccardi, his daughter, to recover an alleged loan of $25,-000. The statement of claim averred “that on or about November 19, 1925, plaintiff did loan to the defendant and her husband, Gia-como Siccardi, the sum of twenty-five thousand ($25,000) dollars.” In her answer defendant “denies that the plaintiff loaned to the defendant the sum of twenty-five thousand ($25,000) dollars as set forth in the complaint.” The plaintiff’s statement also averred: “Interest at the rate of 6 per cent, per annum was paid on said obligation to on or about November 19, 1931.” To this defendant answered: “She has no information as to the statements set forth in paragraph four.” On the two issues of, first, whether plaintiff made the alleged loan to her, and, second, the statute of limitation, the case went to trial and plaintiff had a verdict. On entry of judgment thereon, defendant took this appeal, wherein, in effect, she contends, inter alia, the court erred in refusing to give binding instructions in her favor.
After consideration, we are of opinion no error was committed and the judgment is affirmed. Our reasons for so holding we now state.
The proofs given by the plaintiff tended to show that in 1925 the defendant and her husband, who is since dead, came to plain
“A. I mean 1925 — that Mrs. Siccardi came several times to ask my father for a loan of money.
“Q. And is Mrs. Siccardi your sister? A. Yes, sir.
“Q. Proceed. A. And my father had no ready cash, as he had just built some houses on Sixteenth Avenue, four brand new houses. So. Mrs. Siccardi knew there was no mortgage on these houses and she says, Why don’t you make a mortgage on the property and loan us the money ?’ which my father done.”
Her brother-in-law testified to what was said by defendant and her husband some time before the loan was made, as follows:
“Q. Were you in the Ajello home in November, 1925? A. Right.
“Q. And while you were in the home did Mr. and Mrs. Siccardi visit the home? A. Yes.
“Q. And did you, in their presence, hear any conversation about borrowing any money from Mr. Ajello? A. Yes.
“Q. What was that conversation? A. The conversation was they needed the money very bad and they ask him for $30,000 and the old man say T got no cash on hands,’ and they say, ‘Get some kind of mortgages on the property and see what you can do for us.’ ”
Her sister testified further:
“Q. Mrs. Lima, were you present when your sister and her husband, Mr. and Mrs. Siccardi, requested a loan of $25,000 from your father ? A. Yes, sir.
“Q. Can you remember the conversation? A. Yes, sir, exactly.
“Q. Who did the talking? A. Mrs. Sic-cardi.
“Q. Who? A. Mrs. Siccardi.
“Q. Mrs.? A. Yes, sir, because she came—
“Q. What did she say to your father? A. She told my father that they either were building or had to build a moving picture theatre.
“Q. A little louder, so the jury can hear you. A. They were building or had to build a moving picture theatre, and that they needed money to finance it; so wouldn’t my father lend her and her husband the money.
“Q. What is that ? A. Wouldn’t my father lend her and her husband the money. So my father told her that he had no ready cash. So she says," ‘Well, you have the houses without mortgage; take a mortgage on the houses and give us the money.
“Q. Did he say he would or did he say he would not ? A. My father ?
“Q. Yes. A. He said he would try to get it. He would ask the bank if the bank would lend it to him.
“Q. Then did he say, if the bank would lend it to him, he would lend it to them ? A. Yes, sir.
,“Q. Did he? A. Yes, sir.
“Q. You are sure of that? A. I am sure of that.”
On her part defendant proved she was not with her husband when he requested her father to make a loan to them. In its charge the court submitted to the jury this conflicting testimony, and the verdict establishes the fact that the loan was made in New York state to the defendant and her husband. Such being the case, the other question raised by the defendant as to the liability, under the law of New York, of the defendant, as a married woman, on the note, is immaterial. The plaintiff is not suing on
Finding no error, the judgment is affirmed.