23 A.2d 719 | Conn. | 1941
This case was before us upon a former appeal reported in
Subsequent to filing their remonstrance the defendants moved that the judgment be amended by inserting after the order for an accounting, quoted in the first paragraph of this opinion, the following: "deducting therefrom the expenses and cost of the care, operation and maintenance of said properties, paid, laid out and expended by the defendants including repairs and improvements." The court's denial of this motion is assigned as error. As was stated by this court in an earlier case, the plaintiff in his "complaint asked for an accounting. This, inferentially, conceded that there were items of account upon both sides and that the balance was uncertain until ascertained by an investigation. In this way the plaintiff sought to have the balance ascertained and paid. Such a procedure implied as offer on the part of the plaintiff to pay the balance if it should be found against" him, and this being so the defendants were entitled to a decree in their favor for any balance found due, without resorting to the formality of a counterclaim or cross-complaint. Valente v. Porto,
This is that the court in rendering judgment for the plaintiff upon the committee's report erred in refusing to credit them with the $7759.55, which as above stated they were found to have expended, because it appears that these expenditures were for the care, maintenance and operation of the real estate, for the use of which the defendants were ordered to account. Patently expenditures for masses, a monument, funeral services, funeral supplies and supplies for mourners, which as found by the committee totaled $1345.95, cannot avail the defendants under this contention. Whether the court erred in failing to credit the defendants with the other items expended by them involves the basic question as to the rights of one who has had tortious possession of property when called upon to account. In such a case the question is to what extent must the plaintiff do equity to the defendant (Caramini v. Tegulias,
It is clear that the defendants were not entitled to credit for the $384.50 paid for fire insurance premiums. Schleicher v. Schleicher, supra, 535. Additional facts must be found before the validity of the claimed credits for the items for repairs, coal, ash removal, water bills, architects' fees and attorneys' fees, aggregating $3568.59, can be determined. In so far as the items for repairs are concerned, they might afford a possible basis for credit to the defendants either upon the ground that these constituted improvements giving to the property a greater value when repossessed by the plaintiff than it would otherwise have had, or that they were repairs essential to secure tenants or to obtain rentals to a certain amount. If the former were the situation the defendants would be entitled to a credit only to the extent that the repairs increased the value of the property. Restatement, op. cit., 158, comment c; Blasig v. Blasig,
The only remaining question to be determined is whether the court erred in failing to recommit the report to the committee. A report of a committee should not be recommitted unless the court "is satisfied that such a course is necessary to a just determination of the case," and whether or not it should be recommitted rests in the court's discretion. Practice Book, 173, p. 63. The court did not refuse to recommit the report in the exercise of its discretion, however, but on the ground that the question of expenditures was not open to it under the previous judgment. In this the court erred, as appears from what we have already said concerning the defendants' claim *449
to have the judgment amended. In view of the substantial amount involved in the expenditures made by the defendants for repairs the court might, in the exercise of its discretion, have ordered a recommittal. On the other hand it might decline this relief on the ground that the defendants failed to offer any proof in justification of these items when they had an opportunity to do so at the hearing before the committee. See Kane v. Kane,
There is error, the judgment is set aside and the case is remanded to the Superior Court to be proceeded with according to law.
In this opinion the other judges concurred.