Vitale v. Gargiulo
Vitale v. Gargiulo
Opinion of the Court
This is an action for breach of warranty in the sale of an oil tank truck by the defendants to the plaintiff. The trial court rendered judgment for the plaintiff, and the defendants have appealed. They claim error in the denial of their motion to compel the plaintiff to elect, in the overruling of their demurrer to the complaint, and in the finding and conclusion that the plaintiff had rescinded the contract of sale.
The plaintiff claimed a breach of warranty and demanded $2000 damages. By an amendment to the complaint, she alleged further that she was willing to return the truck and had offered to return it, and that it was of no use to her and was valueless.
The defendants assert that the complaint contains two inconsistent causes of action. They moved that the plaintiff be required to elect between these two causes of action. They also demurred because the two alleged inconsistent causes of action could not be joined in a single complaint. Section 6684 of the General Statutes provides that “[wjhen there is a breach of warranty by the seller, the buyer may, at his election . . . (b) . .. keep the goods and maintain an action against the seller for damages for the breach of warranty, ... (d) rescind . . . the sale and . . . return or offer to return them to the seller and recover the price or any part thereof which has been paid.” The defendants’ motion and demurrer treat the amended complaint as alleging two separate causes of action, whereas the statute, § 6684, is concerned only with the alternative remedies available
The main contention of the defendants is that the court erred in holding that the plaintiff had proved a rescission of the contract of sale. They seek extensive changes in the court’s finding and conclusions. We take this occasion to point out again the vital importance of compliance by both parties with §§ 447 and 448 of the Practice Book by making available in the appendices the portion of the. evidence, stated in narrative form where that is possible, supporting every finding which has been assigned as error and every claim of error in the failure to find facts. The rules do not permit this court to examine the transcript of testimony in order to find the evidence, if any, which supports a finding under attack or a finding sought by a party but refused by the trial court. D’Addario v. American Automobile Ins. Co., 142 Conn. 251, 252, 113 A.2d 361; Scott v. Furrow, 141 Conn. 113, 117, 104 A.2d 224; Baton v. Potvin, 141 Conn. 198, 200, 104 A.2d 768; Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 410, 106 A.2d 720; LaVoie v. Marshall, 141 Conn. 681, 685, 109 A.2d 508. In the instant case the defendants, as appellants pursuing §447 of the Practice Book, claimed that several paragraphs of the finding were found without evidence. This put the burden upon the plaintiff as appellee to print in an appendix to her brief
The defendants assert error in the court’s refusal to find claimed material facts as set forth in eight paragraphs of their draft finding. Although there may be, as the defendants claim, testimony of witnesses in support of these paragraphs, they do not thereby become admitted or undisputed facts. The trial court is the final arbiter of the credibility of evidence and may accept or reject parts of the testimony of a single witness. Corvo v. Waterbury, 141 Conn. 719, 724, 109 A.2d 869; Practice Book § 397. The court did not err in refusing to find these eight paragraphs of the draft finding.
The defendants assign error in fifteen paragraphs of the finding. As to five of these, no claim is pressed in the brief and we shall consider the alleged error as to them to have been abandoned. Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468; Lockwood v. Wilson H. Lee Co., 144 Conn. 155, 160, 128 A.2d 330; Maltbie, Conn. App. Proc. (2d Ed.) pp. 208, 415. Some of the paragraphs of the finding which are challenged are not supported by any evidence in the appendices and therefore must be eliminated. Practice Book §§ 447, 448.
The finding as corrected contains the following subordinate facts: In 1950 and for some time prior thereto the named defendant and his brother, James V. Gargiulo, owned an oil tank truck. Their agent, Frank Kittredge, offered to sell this truck to Louis Vitale, the plaintiff’s agent. Kittredge represented that the meter on the oil tank was in good working condition and that the tank’s capacity was 1000 gallons. On or about October 30, 1950, the de
General Statutes § 6684 provides that when there-is a breach of warranty, the buyer, among other things, may rescind the sale, return or offer to return the goods to the seller, and recover the purchase price or so much of it as has been paid. He-must, however, give notice of his election to rescind within a reasonable time, and the goods, when the-offer to return them is made or when they are returned, must be in substantially as good condition as they were in at the time they were transferred to-the buyer. The defendants attack the conclusions-of the trial court to the effect that (1) there was a. breach of warranty as to the meter and the capacity of the tank; (2) the plaintiff rescinded the sale,, notified the defendants within a reasonable time, and. offered to return the truck; and (3) the truck was insubstantially the condition it was in when the defendants transferred it to the plaintiff.
Conclusions must be tested by the subordinate-
There is no error.
In this opinion O’Sullivan, C. J., Wynne and King, Js., concurred.
Dissenting Opinion
(dissenting). Section 6684 of the General Statutes provides that “[w]hen the goods have been delivered to the buyer, he can not rescind the sale ... if he fails to notify the seller, within a reasonable time, of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer.” The statute gave to the plaintiff a conditional right to return the truck. It was incumbent upon her to establish by evidence that the truck was, when she tendered it, in the condition required by the statute. Keyser v. O’Meara, 116 Conn. 579, 582, 165 A. 793. The only subordinate fact found which can be claimed to furnish a scintilla of support to the .essential conclusion—that at the time the plaintiff offered
It is stated in the opinion of the majority that “[t]he construction which we place upon the finding is fortified by the memorandum of decision, which may be consulted in the interpretation of ambiguous or equivocal language in a finding.” The memorandum of decision was not made a part of the finding. The “interpretation of [the] ambiguous or equivocal language in [the] finding” of the subordinate fact violates the long-established rule stated in Stults v. Palmer, 141 Conn. 709, 711, 109 A.2d 592: “The memorandum of decision cannot take the place of a finding. Statements of fact in it cannot be used to supplement the finding unless, for some specific, unusual purpose, the memorandum of decision is ex
Reference
- Full Case Name
- Grace Vitale v. Henry Gargiulo Et Al.
- Cited By
- 30 cases
- Status
- Published