Maionchi v. Nicholini

It is alleged in the complaint herein, that on March 18, 1901, plaintiff was the owner and holder of a note for the sum of one thousand dollars executed and delivered to him by the defendants Chauvet, and that on said day he indorsed and delivered such note to defendant Florindo Nicholini; that at the time of such indorsement, "and for a long time prior thereto, and ever since, plaintiff has been an old and infirm man, enfeebled in mind and body, and unable to attend to his property interests or rights, and was and is very susceptible to the overtures of others and was and is easily influenced, and such weakness of mind was and is of such character and degree that plaintiff was and is unable to attend to any business affairs in which he is concerned without independent advice"; that plaintiff had implicit confidence and faith in each of the defendants Nicholini, and believed that they advised him in good faith and would protect him; that said defendants fraudulently procured and induced plaintiff to indorse and deliver said note under a promise that they would provide food, clothing, shelter, and the necessaries of life for plaintiff during the remainder of his natural life; that plaintiff never received anything of value for said note, and "said defendants have not provided plaintiff with clothing, food, shelter or necessaries of life." The prayer was, "that said agreement be declared rescinded and said note and everything of value obtained from plaintiff as aforesaid be returned, and for costs, and that defendants be restrained from collecting the same, and for such other relief as is proper." After the action was commenced plaintiff was adjudged insane and a guardian ad litem was appointed. The action was dismissed as to defendants Chauvet, and the other defendants answering denied all the averments of the complaint. The court found against the defendant Florindo Nicholini on the issues thus joined, and rendered judgment that plaintiff was "the owner of and entitled to the *Page 692 possession of the said promissory note." From such judgment and the order denying his motion for a new trial defendant Florindo Nicholini appeals upon a bill of exceptions specifying particulars in which the evidence is insufficient to support the findings and containing many assignments of error. After the cause had been submitted for decision, and on the same day the findings and judgment were filed, without notice to appellant or his attorneys, the complaint was amended by inserting the following amendment: "That during all the times mentioned herein said plaintiff was of unsound mind and entirely without the capacity of understanding or comprehending the nature of said transaction and of the transactions in said complaint set forth, and that Florindo Nicholini knew and had knowledge of said facts and circumstances." The court found in accordance with such averment and after the judgment was entered the appellant in due time and form made his motion to strike out such amendment, and to set aside the finding and judgment on the grounds that said amendment was not served upon appellant or his attorneys, "and that the said amendment was not made to meet the proofs in said cause and was not justified thereby." The motion was denied, and appellant appeals from the order denying said motion. This appeal is supported by a separate bill of exceptions, and we think that the vital questions involved should be considered first.