Welbrot v. Levenberg , 98 Conn. 217 ( 1922 )

By the pleadings in this action it was admitted that the money contributed by and received from the plaintiffs and the other non-appearing persons whom they assumed to represent, was given by them for the purpose of buying a dwelling-house in New Haven. The principal material issue raised was whether it was the purpose of the contributors that the property to be bought with this money should belong to the United Synagogue Society, and its title held in the name of this society in trust for the use of the person who, from time to time, in succession, might be the Chief Rabbi in New Haven, or should be a personal gift to the Rabbi Juda Levenberg and be his private property with title in his own name. Upon the decision of this issue depended the right of the plaintiffs to any of the equitable relief which they prayed for. The question involved was one of title, which ordinarily equity will not try; nor will it take property out of the possession of one and put it into the possession of another, but will leave the parties to settle their doubtful right first at law. Roy v. Moore, 85 Conn. 159,82 A. 233. Either party to this action, therefore, had the right to a trial of this issue by a jury, before the trial of any equitable issue by the court. General Statutes, §§ 5752, 5753, 5755. Hence the counsel in this case quite properly agreed, and the court consented, to submit these questions of fact to the jury for their determination, before the court should proceed to hearing and render judgment on any equitable issues which the action might present. These questions would be laid before the jury most clearly and determined by them most effectively by means of written interrogatories. Accordingly, the plaintiffs requested the court to submit such interrogatories in forms prepared by them. They complain now that the court did not adopt their forms. But comparison shows that the essential substance of the first, second and fourth of the plaintiffs' proposed questions was distinctly and intelligibly expressed in those allowed by the court. The plaintiffs' proposed third interrogatory would have called on the jury to consider and pass on a matter not pertinent to any issue in the case; for if the contributed money was not given for the purpose stated in the complaint, nor for the purpose set up in the affirmative defense, the jury could not be called on to consider and state upon what other conditions the fund was raised. That matter would be irrelevant and immaterial to the issues to be decided in the case.

The appellants criticize the terms of the interrogatories allowed, because they submitted the subject to the jury "treating the fund as a whole." It is true that the money collected was mentioned as "this fund," and no part of it was distinguished from another. But this money was so described in the complaint, which sets forth that the plaintiffs and others "subscribed to a fund," that the defendants "accepted said fund," and "with said fund" bought the premises in question; and in the affirmative defense it is alleged that "the moneys given by any and all parties were donated" for a single purpose. No pretense had been made that the contributions of certain subscribers to this fund were made for one purpose and those of other subscribers for a different purpose, or that this fund was divisible into parts bearing different characteristics and consequences. The fact which an interrogatory submitted to a jury is intended to elicit should be pertinent to some issue framed, and one which may be of material weight in its decision. In the present case, the discretion of the trial court was wisely exercised in allowing the interrogatories to be put to the jury in the forms which it preferred to those proposed in the plaintiffs' request.

There was no error in denying the plaintiffs' motion for judgment "non obstante veredicto," or their motion in arrest of judgment. Contrary to their contention, the answers to the interrogatories were pertinent to a material issue framed by the pleadings in the case, and were decisive of that issue and binding upon the court in its consideration and determination of the other issues raised. These answers made the affirmative defense impregnable, and gave it a controlling position in any further contest between the parties.

The appellants complain because the court, in its charge, did not instruct the jury "in any way to separate the fund," but did continually refer to the fund as one sum of money. As we have said, the fund was so described and presented in the pleadings and in the claims of the parties, and neither of the triers of the action was asked to divide it, or would be justified in dividing it, into parts of different kinds. The purpose of each component contribution was to be considered only so far as it affected the character of the whole fund.

Nor should the court have instructed the jury that if they found that the money contributed was intended for any public charitable use, their verdict should be for the plaintiffs. Their verdict should not be in favor of the plaintiffs unless the plaintiffs had proved the allegations of their complaint, in which a single specific purpose or use was stated. If the jury, wandering outside of the issues raised by the pleadings, should find that any other purpose or use was intended by the donors of this fund, a verdict for the plaintiffs based on that conclusion could not be justified.

The intention of the corporation called the United Synagogue Society, if it had any intention, was not pertinent nor material in this action. The complaint set out that the deed of the premises to the defendant Levenberg was not made by the society or by its authorized agents, and is void. Any purpose this society may have had respecting this fund was of no importance; only the purpose of its donors was in issue. The court below properly ignored the plaintiffs' request to charge upon these matters.

We find no error in the conduct of the court respecting its charge.

Turning to the assignments of error which are based upon rulings on evidence, we recall this language of JUSTICE GAGER in State v. Perretta, 93 Conn. 328, 343,105 A. 690: "Although on account of the gravity of the case we have waived any defects in the form of the record in this case, and have endeavored to answer such plausible reasons as might have been given, yet we call special attention to Rule 5 of the Supreme Court of Errors (Practice Book, 1908, p. 266), which requires that `when error is claimed in rulings upon evidence of witnesses, upon a trial either to the court or to the jury, the finding should state in each instance the question, the objection, the exception, and the answer, if any.' `Objection' here means, not merely that there is objection, but what the objection is. Section 116, Rules of Superior Court (Practice Book, 1908, p. 236), provides that `whenever an objection to the admission of testimony is made, counsel shall state the ground of the objection succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had thereon. No ruling relating to the reception or rejection of evidence will be reviewed unless the record discloses that an exception to such ruling was duly taken.' We know that these rules are sometimes violated in practice. If counsel, when making an objection or a motion, cannot state any reason on which to base it, and thus fairly inform the court as to the nature of the ruling it is called upon to make, the objection should not be made a ground of appeal for reasons subsequently developed and which were not before the court at the time of the ruling. Zalewski v.Waterbury Mfg. Co., 89 Conn. 46, 92 A. 682; Leahy v.Cheney, 90 Conn. 611, 617, 98 A. 132."

The record before us discloses that in seven of the ten instances in which the rulings of the trial court have been assigned as reasons of appeal, the appellants did not state any reason on which the objection was based, and in the same number of instances the answer, if any, to the question objected to and admitted, is not stated in the finding. The gravity of this case is not so great that we are impelled to overlook these defects; and if we should waive them, we should be at a loss to supply a plausible reason for any of these objections, or to conjecture what inadmissible and harmful answer was made. Such reasons of appeal are not in shape to require the attention of this court.

In another instance the defendants offered in evidence a paper which, on cross-examination, a witness for the plaintiffs testified that he recognized, and the plaintiffs objected because it was not a proper part of the cross-examination, but conceded that the paper related to matters put in evidence by themselves during the direct examination of this witness; and that the paper was admissible to explain why a certain contract had been made. Then the paper was admitted as an exhibit, but does not appear in the record. It is impossible to imagine a sensible reason why it should not have been in evidence.

In another instance a witness had been questioned about a written notice of a meeting of the contributors to the fund which had been collected, and to the admission of a paper claimed to be such a notice the plaintiffs objected, because the paper was not considered to have anything to do with the issues in this case, and was not a notice. The paper, with translation, was admitted and marked as an exhibit; but it was not included in the record. Further, the same witness was asked what was the decision of the assembly in the meeting assumed to have been called by this notice, and the plaintiffs objected for the reason that the action of the assembly was not binding upon the individual contributors to the fund; and thereupon the court suggested that the objection would be a matter to argue to the jury; and the record states only that the question was then read, but not that it was answered. Again, this witness was asked what the defendant Levenberg had said to the committee of those who had contributed to the fund when he stated to them the only conditions on which he would accept the property; and after the question had been admitted over an objection interposed without reason stated, the witness testified that he would accept the property only as a gift to himself, he undertaking to pay the mortgage upon it.

The record before us does not reveal any ground to support the assignments of error respecting these rulings on evidence.

Two days after the jury had returned their answers to the interrogatories finding the purpose for which the fund in question had been contributed, the plaintiffs moved for leave to file an amendment to their complaint. Therein they repeated the allegations of this complaint, and added the allegation that a part of the money collected had been given by the plaintiffs and others "for the purpose of establishing a public charitable fund to maintain a dwelling for a Rabbi in the city of New Haven," and that this fund had not been used for that purpose, but had been "diverted for the private advantage of the defendant Levenberg"; and they prayed for an order to separate the funds given by the plaintiffs and the others whom they represented, from the rest of the funds, and that the funds so separated be used for the purpose "designated by the owners," and for an accounting. These allegations presented no new matter for the consideration of the court. They offered no issue except the one made by the original complaint and the affirmative defense, in which the fund was represented as a whole; and the purpose of the fund as a whole had been submitted to and determined conclusively by the jury. This decision included all parts of the whole. The issue proposed by the amendment had already been raised and settled. The court did not err in refusing to allow the amendment.

The record states that after the return and acceptance of the finding of the jury on the interrogatories, the court, after full opportunity given, further heard the parties on the other questions involved in the action, and thereupon found the issues for the defendants, and rendered judgment that the title to the property which rested in the defendant Levenberg was where it legally should be and was intended to be by the donors of the fund. There is nothing in the record which would indicate that that conclusion was not reasonable and legitimate upon the pleadings, the finding of the jury, and the relevant facts found in the subsequent hearing granted to the parties.

There is no error.

In this opinion the other judges concurred.