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Rizzo v. Rizzo

OPINION FILED MAY 24, 1954

CATHERINE MIGLORE RIZZO ET AL., APPELLEES,

v.

MICHAEL RIZZO ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 13, 1954.

Defendants have appealed directly from a decree of the circuit court of Cook County, entered substantially in accordance with the master's findings and recommendations, and ordering defendants Michael, Joseph and John Rizzo, as surviving partners of Rocco Rizzo Sons & Co., to render an accounting to Catherine Miglore Rizzo, (herein called plaintiff,) administratrix of the estate of Rocco Rizzo, Jr., a deceased partner, and directing defendants Mary and James Rosinia to convey a one-fourth interest in certain real estate to each of the defendants Rose Cambiglio, Angelina Raio, and Theresa Schiavone, together with an accounting of the profits from the premises since May 1, 1939.

The essential issues in this cause are whether the evidence establishes that a partnership existed at the date of the death of Rocco Rizzo, Jr., between him and his brothers, defendants Michael, John and Joseph Rizzo; whether laches barred plaintiff's claim predicated on such alleged partnership; and whether defendants Mary and James Rosinia held the residential property under a constructive trust for the benefit of the daughters of Rocco Rizzo, Sr.

From the evidence adduced before the master, it appears that in 1910, Rocco Rizzo, Sr., an Italian immigrant, who could neither read nor write English, operated a waste paper business at 612 West Taylor Street, Chicago, Illinois, under the name of Rocco Rizzo & Co. He also owned a building at 1109-1111 South Racine Avenue, in which he and his eight children lived.

Michael, the oldest son, went to work for his father in 1910, Joseph went to work in 1913, Rocco, Jr., in 1916, and John in 1920. Each son performed definite duties for the business: Michael, the most experienced, was the general manager; Joseph was the receiving clerk; and John and Rocco, Jr., were truck drivers. None of them received wages, but were given room and board, and all the profits, if any, were divided equally. However, in 1915, Rocco, Sr., retired from active participation. Michael, then age 21, urged his father to stay at home since their mother was dead.

On October 29, 1929, the father deeded the business property at 612 West Taylor Street, to Michael, who paid no consideration for either the business or the building, but merely handed the deed to his father to sign with his mark. Additional property adjoining these premises was subsequently acquired, and title was taken in the name of Frank Rosinia. There is evidence that the property was paid for with funds furnished by Michael, his brothers, and by the business which was the only source of income of the brothers.

The evidence is controverted as to whether the business relationship between the brothers constituted a partnership. Michael, Joseph and John all denied that they were partners prior to 1944, but admitted that they all worked in the business, shared equally in the profits, and went without pay if there were no profits. On cross-examination, Michael admitted that after his father retired from the business in 1915, as the oldest son he was operating head and ran the business for his brothers who entered it as they became old enough; that it was the boys' business, and they all worked together, one for all and all for one to make a living from it.

It was admitted that the name of the business was originally Rocco Rizzo & Co.; that it became Rocco Rizzo Son & Co. when Michael went to work; and sometime thereafter it was changed to Rocco Rizzo Sons & Co. Michael denied that this latter change occurred during the lifetime of Rocco Rizzo, Jr., but the firm was listed in the telephone directories for 1920, 1927, 1929, 1930, 1931, and 1932 as Rocco Rizzo Sons & Co., and there was some evidence that this title appeared on the truck during the years prior to the death of Rocco Rizzo, Jr.

The sister, Rose Cambiglio, testified that her brother, Rocco, Jr., was a partner. There was a conflict in the testimony of persons who had business dealings with the firm as to whether the brothers were partners. An employee of 30 years admitted on cross-examination that it was his understanding that Rocco, Jr., was one of the bosses, and that all the Rizzo brothers were owners of the company; another witness stated that Rocco, Jr., had referred to Michael as "the boss"; and other witnesses testified that Michael alone was "the boss."

Rocco Rizzo, Jr., died intestate June 27, 1931, leaving surviving his widow and two minor sons. Plaintiff testified that after her husband's funeral, Michael assured her that she would get her husband's share out of the business as she always had, that she and her children would be taken care of, and agreed to pay her $15 a week, which sum was paid for 11 months. Michael, however, denied the conversation, but admitted making the payments. Plaintiff also testified that Michael Rizzo told her in 1933 that business was bad, but as soon as it picked up she would get her husband's share. In that conversation plaintiff also asked Michael about the $800 that she and her husband had given him when he was short, and asked that she be given at least a few dollars a week on account since she earned only $12 a week, and couldn't get along. She claims that Michael said, "Have you got anything to show for it in black and white?" Michael, however, denies any such conversation, and stated that he walked away when he saw plaintiff coming, and avoided her after her husband's death.

Plaintiff testified further to another meeting around 1937 with James Rosinia and Michael Rizzo, during which they told her and her brother, who was also present, that they knew she had tried to bring suit and had stopped her lawyer. They again assured her that when business picked up she would get the share to which she was entitled. Defendants denied this conversation.

In 1938 plaintiff's son Robert, then age 16, went to work for the Rizzo brothers at a salary of $9 a week, and continued for about four years. In about 1940 plaintiff claims that she had another conversation with Michael Rizzo, in which she demanded some money and pointed out that the other partners and their wives were receiving money. He refused to give her ...


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