Opinion
An effort to correct the finding of facts is futile in the absence of a transcript of the evidence. An unsigned memorandum of the terms of the oral agreement was admissible where there was testimony that one of the defendants had made the memorandum simultaneously with the agreement and had shown it to the plaintiff, who promised to sign it but never did.
Argued December 6, 1950
Decided January 16, 1951
Action to recover for labor and materials alleged to have been furnished the defendants, brought to the Town Court of Westport and transferred to the City Court of Norwalk, where the defendants filed a counterclaim and the issues were tried to the court, Keogh, J.; judgment for the defendants on the complaint and for the plaintiff on the counterclaim, from which the plaintiff appealed. No error.
Morris Robinson, with whom, on the brief, were Leo Nevas and Howard Benedict, for the appellant (plaintiff).
Robert N. Grosby, with whom, on the brief, were A. D. Slavitt and I. M. Mackler, for the appellees (defendants).
The plaintiff brought suit to recover an unpaid balance claimed to be due from the defendants for work performed and materials furnished. The answer alleged payment. Judgment was entered for the defendants on the complaint and the plaintiff has appealed.
It Is unnecessary to recite the facts, which amply support the court's decisive conclusions as to the existing contract and payment in full by the defendants. The effort to change the facts by correcting the finding is futile in the absence of a transcript of the evidence. Lusas v. St. Patrick's Roman Catholic Church Corporation, 125 Conn. 206, 207, 4 A.2d 333. Even the exhibits, on which the plaintiff attempts to rely, are not certified and made part of the record.
The plaintiff assigns as error the failure of the court to have in attendance at the trial a competent stenographer to record the proceedings. General Statutes 7591. We disposed of a similar claim adversely to the party making it in Bisi v. American Automobile Ins. Co., decided this day.
The plaintiff attacks two rulings on evidence. Over objection, the court admitted in evidence an unsigned memorandum of the terms of the oral agreement. There was testimony that one of the defendants had made the memorandum simultaneously with the agreement and had shown it to the plaintiff, who promised to sign it, although he never did. The ruling was correct. Squires v. Kilgore, 92 Fla. 1001, 1005, 111 So. 113; Meyer v. Reichardt, 112 Mass. 108, 109; see Gray v. Greenblatt, 113 Conn. 535, 538, 155 A. 707.
The other ruling admitted in evidence a stranger's testimony that after the work was under way he overheard a discussion between the plaintiff and one of the defendants and that the amount which the defendants claimed was the agreed price was mentioned. The ruling was correct. See Socony-Vacuum Oil Co. v. Elion, 126 Conn. 310, 318, 11 A.2d 5.