Vollaro v. Gargano

Wheeler, C. J. The finding of facts in Vollaro v. Gargano required the judgment which was rendered, regardless of whether the conclusions of law reached by the court were correct or not. The assignment of errors in the appeal in Gargano v. Vollaro may be reduced to four: that Gargano *278 cannot sustain his action because, (1) the property for the refusal to transfer which he seeks to recover damages, was transferred to avoid an attachment on a tort claim against his deceased wife; (2) his laches precludes him from asserting his right to this half of these premises; (3) the circumstances found estop him from making claim to this half and constitute on his part a waiver of his right to make such claim; and (4) the measure of damages adopted by the court was wrong. It is not found that when Gargano transferred these premises he had any creditors, consequently the rule invoked has no application. The claims of laches and waiver are not, upon the finding made, even arguable points. The only serious question in the case is as to whether the court adopted a measure of damages which can be upheld by our law. The court took one half of the amount paid by Gargano for this property in 1916, and added to this sum the interest thereon from the date defendants wrongfully refused to retransfer this half of the premises. Upon the facts found, the plaintiff would have been entitled to a reconveyance of these premises had his prayers for relief contained such claim. As he merely claimed money damages, he was entitled to the value of the half of these premises from the date of his demand for a reconveyance, together with interest thereon from the date of demand. The amount paid for the premises may or may not measure this value. The finding fails to find the value of this half interest at any time so that, so far as the record discloses, there was no basis of value before the court from which it could render a money judgment. The plaintiff likens the rule of damage to that in a case of conversion which had occurred at the date of transfer. There is no similitude. The finding does not show *279 that Mrs. Vollaro received the premises or held or used them in any way wrongfully, until she refused to meet plaintiff’s demand for a reconveyance. There is no occasion to retry the case. A finding of the value of the premises on November 4th, 1919, should be made, and judgment thereupon rendered for plaintiff for such sum with interest from such date. There is error and a new trial is ordered for the finding of the value of said half on November 4th, 1919, and judgment is thereupon, directed to be rendered for such sum with interest thereon from November 4th, 1919. In this opinion the other judges concurred.