118 A. 915 | Conn. | 1922
The court made no error in denying the defendant's motion to set aside the verdict. It is admitted that the plaintiff Frazier, when he caused this suit to be begun by his conservator, when he had his conservator removed and took charge of the conduct of the case in place of his conservator, and when he testified during the trial, knew what he was doing and what he and his sister had done. He might not have understood what significance and interpretation the law would put upon their acts, but he remembered the facts clearly and stated them intelligibly and fully, if somewhat ramblingly. His credibility and the weight of his testimony were questions within the province of the jury only. It was for them, also, to consider the financial conditions of the actual parties, the circumstances of the transaction between them, and the events preceding and following it, either to corroborate or to contradict the plaintiff's assertions and claims. We agree with the conclusion of the trial court, stated in its memorandum denying this motion, that "a review of the evidence discloses no such situation as to indicate any improper motive, attitude or conduct on the part of the jury, or that their conclusion was not legitimately warranted by evidence before them which they might properly have believed."
It was well within the reasonable exercise of the court's judicial discretion to permit the amendment of the complaint by adding the second count. The complaint itself set out a cause of action which arose out of dealings between the plaintiff and defendant which took place at a time when the plaintiff was weak in mind and incapable of attending to his business affairs, and in which the defendant obtained from him by undue *205
influence a sum of money which she converted to her own use. The plaintiff's real object in bringing this suit was to recover this money. That was therefore his ground or cause of action. Johnston v. Sikes,
Moreover, by the death of the defendant while the suit was pending, the plaintiff's cause or right of action was not lost nor destroyed; it survived against her administrator. General Statutes, § 6177. "The cause of an action is the existence of a state of facts which entitles the plaintiff to the relief claimed. Any state of facts which entitles the plaintiff to that relief shows a cause of action." Wildman v. Wildman,
It appears in the record of this case that after the original defendant had filed her answer to the complaint and within six weeks after her death, an administrator of her estate, upon his own motion and without process or suggestion made by the plaintiff, was substituted as defendant by order of the court, and that about six months afterward another person, apparently as successor, was entered as administrator in the same manner. Then the real plaintiff was substituted for his conservator as plaintiff. But during these changes the original answer was never withdrawn or changed. Subsequently the additional count of the complaint was filed and answered by the then defendant administrator with a general denial. In this condition of the action, and for the reasons we have already given, we do not hesitate to hold that the plaintiff's cause of action survived, and that the amendment of the complaint, setting out only another claim of the plaintiff which was based upon the same facts and arose out of the same transaction, was properly permitted.
The appellant further claims that the court erred in omitting to instruct the jury that, in order to render a verdict for the plaintiff against the defendant administrator, it was necessary that evidence should be produced showing that the claim sued upon was exhibited and presented in writing by the plaintiff to the administrator within the time limited by the Court of Probate for exhibiting and presenting claims against the estate of the original defendant in this suit, Emma C. Bailey. To support this claim he cites § 4983 of the General Statutes, which declares that any creditor who shall fail to so exhibit his claim shall be forever barred of his demand against said estate; and the claim shall be in writing, § 4984.
It would be enough to say, concerning this assignment of error, that it appears on the record that no such *209
question was raised on the trial, and therefore this court is not bound to give it any consideration. General Statutes, § 5837; Cone v. Dunham,
The appellant, however, now asserts that the restriction imposed by this statute is "the law of the land," and was controlling in the determination of this case; and therefore it was the duty of the trial court, of its own motion, to instruct the jury that it must be shown by the evidence that this claim had *210
been exhibited in the manner prescribed by this statute. But this statute was not "the law of the land" which the court was bound to know and apply in this case. Cunningham v. Cunningham,
The record discloses that by the amendment the second count was added to the complaint, and did not set forth another or substituted cause of action for that set forth in the first count. For the reasons we have already stated, both counts were parts of one complaint in which the plaintiff sought to recover, under one or the other count, upon claims arising out of the same transaction. Hence the issues of fact under both counts were properly submitted to the jury, for them to determine whether the plaintiff should recover under one or the other, but not under both.
There is no error.
In this opinion the other judges concurred.
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