2 Conn. Cir. Ct. 469 | Conn. App. Ct. | 1964
The Public Finance Corporation, hereinafter referred to as the finance company, of Hart
The findings made by the trial court, with such corrections as the plaintiff is entitled to, disclose these facts: The defendant and his wife were separated and had been living separate and apart for about eight years prior to May 19, 1961. He was employed as a chef at the Heublein Hotel, in Hartford, where he also maintained his residence. He and his wife were perennial borrowers of the finance company, having singly or jointly over the years received twenty prior loans which were either paid in full in due course or by renewal note as the balance was reduced from time to time. On May 19, 1961, having arranged Avith the manager of the finance company by telephone for an additional loan, the defendant signed and delivered to the finance company the note which is the subject matter of this suit, in the sum of $600, which covered a balance of $460.42 in discharge of a former loan and $5 for life insurance, thus making available to the defendant $134.58 in cash. His purpose in requesting the loan was to buy clothes for his children. When he went to the office of the finance company to arrange for the additional loan, he was asked to furnish it Avith a financial statement which was a
The trial court found that the defendant, while he executed the financial statement, did not at any time make a materially false statement in writing respecting his financial condition; and it further found
The Bankruptcy Act, §17 (a) (2), as amended in 1960, provides in part: “(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as . . . (2) are liabilities for obtaining money or property by false pretenses of false representations, or for obtaining ... an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive . . . .” 52 Stat. 851, as amended, 11 U.S.C. § 35 (a) (2) (Sup. 2, 1960); see Consolidated Plan of Connecticut, Inc. v. Bonitatibus, 130 Conn. 199; Fidelity & Casualty Co. v. Golombosky, 133 Conn. 317. “Loans secured by means of false financial statements come within this classification if it can be proved that the representations as to the debtor’s financial condition were in fact false and were made with the intention of defrauding the creditor who relied thereon and was misled by them, and that the loan was in fact based upon such representation.” Personal Finance Corporation v. Robinson, 27 N.Y.S.2d 6, 8; see 8B C.J.S., Bankruptcy, § 573; Family Small Loan Co. v. Mason, 67 F.2d 207 (4th Cir.); In re Day, 11 F. Sup. 400 (D. Mass.). “To bring a claim within the exception, from discharge, of money or property obtained by false pretenses or false representations, it must appear that the particular acts or statements were relied upon by the creditor in making the sale or loan, and it must further appear that such reliance was justified under the circumstances.” 9 Am. Jur. 2d 586, Bankruptcy, § 783. “It must . . . affirmatively appear that such representations were knowingly and fraudulently made, and that they were relied upon by the other
“Let us take one aspect of this ease: reliance---[R]eliance in the end is to a considerable degree a matter of one’s opinion.” Wylie v. Ward, 292 F.2d 590, 592 (9th Cir.). “It is clear that failure to list standing alone, unless relied upon by the creditor, is insufficient to upset the bankruptcy discharge.” Public Finance Corporation v. Callopy, 12 Ohio Op. 2d 317, 318. That the loan in the instant ease was hurriedly made and hastily given is borne out by the finding that “[t]he entire conference between the defendant and the plaintiff’s manager on May 19, 1961, took a very short time” and by the financial statement itself, which is skimpy, to say the least, and is singularly unadaptable for the purpose it was designed to serve. It was reasonable, therefore, under the circumstances, for the court to infer that the finance company obtained the signed statement as a pro forma compliance with a requirement that such a statement be furnished with the loan application. The statement signed by the defendant was untrue, but the circumstances attending its submission and the conduct, inter se, between the finance company and the defendant showed, not reliance on the statement, but rather upon the defendant’s history with the finance company. This history began in 1948 and covered some twenty loan transactions.
Courts, generally speaking, under somewhat similar, if not identical, circumstances have hesitated to find reliance upon the statement where, as here, a debtor has a long history with a loaning company and has made good on all his previous loans. Thus, in Household Finance Corporation v. Groscost, 230 F.2d 608 (6th Cir.), a finding that
The court was amply warranted in concluding that the plaintiff has fallen short of proving that the financial statement was given with fraudulent intent or that the loan was made in reliance upon it. The findings cannot be disturbed on appeal.
The plaintiff assigns error in the court’s failure to “require the defendant actually and specifically to rest his ease before proceeding to a decision.” Reference to the transcript discloses that after the last witness had concluded his testimony, the following occurred: “The court: Anything further! Mr. Heslin: Nothing further, Tour Honor. Mr. Pasquariello: Can we summarize it, Your Honor! Mr. Heslin: Well, I will rest when I get a chance. The court: I am willing to listen. Mr. Heslin: I have no desire to make any argument. The court: All right. You don’t have to. What do you wish to say! [Mr. Pasquariello argued to the court].”
The plaintiff failed to call the court’s attention to any claimed error or omission which may have occurred during the course of the trial; indeed, after counsel for the defendant said, “Nothing further . . . ,” the plaintiff sought and was granted permission of the court to summarize its case and argue on the merits. The plaintiff sat back and took the chance of a favorable outcome. See Furber v. Trowbridge, 117 Conn. 478, 482. “As a general rule, no objection can be made because of errors, irregularities or omissions in the conduct of a trial by a party who consents to the action taken, or does not
There is no error.
In this opinion Dearington and Kinmonth, Js., concurred.