Sharon v. Tsarfaty, No. Cv88 034 01 64 S (Nov. 22, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANT'S EXCEPTIONS TO REPORT OF TRIAL REFEREE 1. The court agrees with the referee that a claim of repudiation should be specifically plead.

2. The referee did not find that the defendant was acting out of a fiduciary duty when he removed merchandise from the store. Such a finding is a question of fact to be determined by the referee. Such question of fact was not admitted by both parties.

3. The referee found that the only set-offs to which defendant proved himself to be entitled were those set forth CT Page 10121 in the referee's reports. Such a finding is a question of fact to be determined by the referee. Such fact was not admitted by both parties.

4. The referee was asked to find that the agreement violated the statute of frauds. He found this argument to be unpersuasive, as does the court.

5. The referee was asked to find that plaintiff failed to mitigate damages. The referee found the evidence cited unpersuasive. The issue of mitigation of damages was a question of fact to be determined by the referee. Such fact was not admitted by both parties.

The exceptions are overruled.

Allen, J.