Pepe Co., Inc. v. Apuzzo , 98 Conn. 807 ( 1923 )

At the outset the appellant attacks the judgment of the court on the ground that there was a total failure to prove the cause of action alleged in the complaint, in that the complaint sets up a conspiracy to cheat and defraud the plaintiff, while the trial court found a conspiracy to rob, based on the facts found by it, as appears in the preceding statement of facts. Counsel contends that the meaning of the words "cheat and defraud" is established in law as applied to inducing a person to part with the possession of property by reason of intentionally false representations relied and acted upon by such person to his harm. Such is undoubtedly the usual meaning of these words, and there is nothing in the facts found by the court to indicate that any persons combined to cheat and defraud the plaintiff in the way just indicated. The first paragraph of the complaint, as quoted in the statement of facts, was put in issue in the trial of the case by a general denial, and after trial the court found all the issues in favor of the plaintiff, as appears by the judgment-file. The facts set forth in the finding entirely justify the finding on the issues made by the court, and particularly those arising out of the allegations of the first paragraph of said complaint, reasonably construed. The words "cheat and defraud" are evidently intended to characterize in a general way the nefarious intent of the defendants, and as merely introductory to the primary allegation of a conspiracy to cause the breaking into the plaintiff's place of business and the taking of goods therefrom. As the words stand, they would not constitute a proper allegation of fraud or deceit. These words can be rejected as surplusage, and there will still remain a good allegation of an actionable wrong. It is evident that the case was tried upon this assumption, as in the third paragraph of the finding the court says: "The robbery was the result of a conspiracy to rob the plaintiff," which here evidently means the theft and transportation of plaintiff's goods, as the transaction carried out was not the criminal offense of robbery, but, as a crime, constituted statutory burglary. The question of a variance was not raised at the trial, nor afterward by a motion in arrest, nor is it specifically assigned as a reason of appeal in this court. Even though the question were properly before us, we regard the variance as immaterial, and cured by the general finding of the issues for the plaintiff.

Desiring to present for review certain rulings of the trial court upon questions of evidence, defendants' counsel in the trial court submitted a draft-finding in which the rulings presented for review are stated by simply saying that the court erred in admitting the testimony of certain witnesses, without in any way indicating the circumstances under which the rulings were made, and not accompanied by a transcript of the stenographer's notes containing the testimony and rulings of the court thereon. The trial judge declined to make a finding as requested, for the reason that counsel had not complied with the rule governing such procedure, Practice Book (1922) § 133, p. 272, but extended the time of filing an amended draft-finding. This latter was later filed, but still failed to comply with the provisions of the rule, in that it in some instances merely quoted a few questions and answers without indicating the point involved, and in others claimed error in admitting testimony as appearing upon certain pages of a transcript of the whole evidence, which had been filed as an aid in securing certain corrections in findings of fact. The trial judge refused to adopt this amended request for the reasons just stated, and properly so, and his action in so doing is assigned as error in the appeal, and we are requested to add these paragraphs to the finding.

Counsel for defendant on appeal (of whom in fairness it should be said that he did not participate in the trial of the action), urges that while the method adopted by the trial counsel is not to be commended, and doubtless would have made the preparation of the finding more laborious, yet the same was within the terms of the rule, and owing to the peculiar exigencies of a case involving a claim of conspiracy, it was difficult to know just what to include in connection with any given objection, and therefore counsel sought to be on the safe side and submitted the entire evidence; also, that it would be most unfortunate if the appellant should lose the opportunity of presenting important claims "merely through the ineptitude of counsel." To adopt the view of counsel in this regard would be to dispense with all advantage and convenience resulting from reasonable compliance with the established rule, and a record made up upon the plan pursued in the specimen before us, gives no proper indication to the appellate court or to opposing counsel of the exact points intended to be raised. To forestall the ineptitude of counsel is a not unimportant purpose in the adoption of specific and precise rules of practice.

Upon the record presented we cannot consider the evidential questions raised, nor correct the finding so as to make them parts thereof. The review of the evidence made necessary by the motion of the appellant to correct the finding of fact in certain particulars, has, however, involved an incidental examination of these evidential questions, and we cannot see that the trial court erred in any harmful way.

Passing to the motion to correct the finding by striking out from paragraph three the name of Salvatore Apuzzo, and from paragraph five the words "and the store of Salvatore Apuzzo," and from paragraph seven the words "following police inquiries at the store of said Salvatore Apuzzo," and also excepting to the entirety of paragraphs three, five, six, and seven of the finding, we note that in the reasons of appeal it is claimed that the trial judge erred in his findings in all of these paragraphs because the same are "without any sufficient evidence to support them, and are contrary to the facts as proved." These reasons contain an invitation to us (improper but not infrequent) to retry the case upon the whole evidence. We are not concerned with the sufficiency or weight of evidence produced: that is the function of the trial court. Unless a fact is found without any evidence, or found in language of doubtful meaning, the finding must stand. Treating the reasons, however, as claiming that the facts involved were found without evidence, we can find nothing to support this claim. Though extremely contradictory testimony exists in the case, we do not discover any finding by the trial court not sustained by evidence legally applicable.

There remain for consideration reasons of appeal numbered eighteen to twenty-two inclusive, purporting to be assignments of errors of law, each of which, with the exception of number twenty-two, sets forth that there was "no legally sufficient evidence or proof" of certain facts contained in the finding made by the court. Assignments of error of this nature only assert errors of fact, faulty conclusions or lack of conclusions from the evidence in the case, and are not to be considered. Where such claimed errors go to the extent of finding a material fact without evidence, or of refusing to find an admitted or undisputed fact material to the case, they are properly considered on an appeal from the denial of a motion to correct the finding made to the trial court; otherwise they are of no consequence and have no place in the case. The motion to correct the finding was addressed to these same claimed improper findings, and, had it prevailed, would have accomplished the result sought in the reasons of appeal just referred to. As we have seen, this motion to correct was properly denied.

The twenty-second reason of appeal is that no prima facie case was made out against the defendant Salvatore Apuzzo so far as to admit evidence of declarations of alleged co-conspirators. There is nothing in the finding by which a consideration of this reason can be claimed or supported. The only orderly method by which this object can be obtained is by a proper finding setting forth the state of the evidence at a given stage of the case, and the testimony then sought to be introduced relative to the declarations. State v.Thompson, 69 Conn. 720, 727, 38 A. 868. Nothing of this sort or approximating thereto appears in the record before us, and the fact that for purposes of correction we have the whole record before us, does not allow a detailed examination of the same for the purpose of considering the alleged error. Could we lawfully pursue such a course, it would rarely occur that there would result any conclusion adverse to the ruling of the trial court, for the reason that the amount of evidence necessary in that regard lies within the discretion of the trial court, which will not be questioned unless abused,Knower v. Cadden Clothing Co., 57 Conn. 202, 222, 223,17 A. 580; Cooke v. Weed, 90 Conn. 544, 548,97 A. 765; also the order of proof lies within the discretion of the court. State v. Thompson, supra, 726.

There is no error.

In this opinion the other judges concurred.