78 A. 314 | Conn. | 1910
This is an action brought on the common counts. The bill of particulars contained two items of money loaned to the defendant by the plaintiff, viz., February 29th, 1904, $1,300, and July, 1904, $3,000. In compliance with an order of court, the plaintiff made her bill of particulars more specific, by stating that the $3,000 referred to in the second item of the bill of particulars was money loaned by the plaintiff to the defendant, and was used by the defendant as part of the purchase price for the premises known as 61 Garden Street.
The first defense was a general denial, and the second defense was adjudged insufficient on demurrer. The parties then went to trial under the general issue, when the court found for the plaintiff and rendered judgment for $1,600.
The appeal assigns error in sustaining the demurrer to the second defense, and because the court overruled certain claims of law which the defendant made upon the trial.
The defendant's main contention, expressed in several forms in the reasons of appeal, is to the effect that the court erred in not holding that the judgment granting alimony to his wife in the divorce proceedings was a bar to her recovery in the present action.
Going to trial under the general issue, after a demurrer to the second defense had been sustained, did not waive the right of appeal, after final judgment, from the interlocutory judgment upon the demurrer.Hunter's Appeal,
For the purpose of testing the question as to whether the defendant was injured by the judgment, we are therefore to examine the facts set up in the second defense, in connection with the other facts found to exist. Thus treated, it appears that for some years after their marriage the parties were engaged in the business of pressing and cleaning clothes. This business started on a small scale, but through the industry and application of both husband and wife it became profitable. The profits, by agreement between them, were divided, and the plaintiff's share at first was deposited in a savings-bank in her own name, but subsequently was transferred to their joint account. In May, 1897, they purchased a dwelling-house for their own occupancy, and $3,200 of this purchase price was paid in cash drawn from their joint account. The title to this property was taken in the name of the husband, contrary to an agreement that it was to be taken in their names as joint owners. This title was so taken without the consent of the wife and contrary to her express direction. Sixteen hundred dollars, one half of the sum paid on the purchase price for the dwelling-house, was the plaintiff's property, for which the judgment now in question was rendered. The parties moved into this house and lived there until July, 1905, when they separated. Shortly thereafter an action claiming a divorce, alimony, and a change of the plaintiff's name, was instituted. The complaint in that action, among other things, alleged that the defendant had been guilty *638 of intolerable cruelty, and that the defendant owned real and personal estate of the value of $10,000. A decree was rendered awarding a divorce to the plaintiff from the defendant, and allowing her $1,000 as alimony, which was paid by the defendant. On the trial of the divorce action the plaintiff introduced evidence and sought to prove the truth of the matter she now alleges in her present complaint and bill of particulars, for the purpose of enhancing whatever sums the court might find to be due her under her claim for alimony. The court received said evidence and considered all the conditions and circumstances surrounding and connected with the plaintiff's present claim as set forth in her complaint and bill of particulars, for the purpose of ascertaining what was fairly and reasonably due to the plaintiff as alimony.
Is this a case of estoppel by judgment? The law in respect to such estoppel was fully considered and determined by the court in the case of Cromwell v.County of Sac,
The defendant contends, in his second defense, that the plaintiff, upon the trial of the action for a divorce, for the purpose of increasing the amount that might be allowed her as alimony, sought to establish the claim now in question. A sufficient answer to this claim is found in the fact that this evidence could only have *640
been received for the purpose of ascertaining what was fairly due to the plaintiff as an allowance from her husband's estate. To reach such a conclusion it became the duty of the trial court not only to make proper deductions from the amount of the defendant's estate for his indebtedness to his wife and others, existing when the divorce was granted, but also to consider the financial condition of the wife aside from any allowance which might be made. Burrows v. Purple,
It is not claimed that there is anything in the evidential and subordinate facts to justify us in questioning the legality and correctness of this conclusion. We have seen that the law provides that the allowance which was made to the plaintiff in a divorce case must be taken from the estate of the husband. That which the wife owned before the judgment in the divorce proceedings is still hers so far as that decree is concerned, and, while it was proper to take her property into consideration in that trial, yet the judgment there rendered in no way affected it. Fredericks v. Sault,
One assignment of error is addressed to a question of variance between the allegations of the complaint and the proof offered to sustain them. No evidence showing a variance is recited in the record, but the defendant in argument contends that it appears that the plaintiff's cause of action is based upon an allegation for money loaned, while the finding of facts shows that she is seeking damages for the conversion of her money. *641
The complaint alleged a loaning of the money to the defendant, and that it was used by him in the purchase of certain real estate. The facts found warranted a judgment for money received under an agreement that it should be used for an express purpose, which the defendant failed to carry out. See Thresher v.Stonington Savings Bank,
There is no error.
In this opinion the other judges concurred.