Abbott v. Lee , 86 Conn. 392 ( 1912 )

To entitle the plaintiff to recover, he was required to prove the averment of his complaint, that he procured a "purchaser ready and willing to buy upon the terms prescribed by the defendant." To do this in the present case he was required to prove that Poillon was ready and willing to accept a conveyance of the property, and to pay the agreed price for it, in accordance with the terms fixed by the defendant, or that Poillon was ready and willing to enter into an enforceable contract to do so. Leete v. Norton, 43 Conn. 219,226; Schlegal v. Allerton, 65 Conn. 260, 32 A. 363;Clark v. Thompson Son Co., 75 Conn. 161,52 A. 720.

It is conceded that the conveyance was to be by warranty deed.

The complaint does not properly describe the property to be conveyed, or the sum to be paid to the plaintiff. By the final agreement the dwelling-house and one acre of land was to be excepted from the property first proposed to be sold, and the sum to be paid the plaintiff was fixed at $1,500.

The only property which the plaintiff was finally authorized by the defendant and his sisters to sell, was that described in the deeds referred to in Exhibit A, an instrument which was prepared by the plaintiff himself, was signed by the defendant and his sisters, and was also shown to Mr. Poillon.

It is expressly stated in Exhibit A, that the tract or tracts of land to be sold to Mr. Poillon (excepting the house and one acre of land) were "as described in deeds as follows." Following this statement in Exhibit A, are the names of the parties to said deeds, the respective dates upon which the deeds were executed, and the volumes and pages where they are recorded.

From this language of Exhibit A, the plaintiff as well as Poillon, to whom it was shown, were clearly informed just what property was to be conveyed by the defendant and his sisters, and how the "tract or tracts" to be conveyed were to be described in the deed of conveyance.

In view of this language of Exhibit A, the defendant, unless he has modified the terms of Exhibit A, was not required, either by any agreement with the plaintiff or with Poillon, to execute any contract to sell, or any deed of conveyance to Poillon, containing any materially different description of the property or rights conveyed or to be conveyed, from those described in Exhibit A, and the deeds therein referred to, or to execute any contract or deed agreeing to warrant any title to any property or right, not included in the descriptions of property and rights contained in Exhibit A, or in said described deeds.

The plaintiff, however, claims that the description of the property to be conveyed, as contained in Exhibit A, was modified and changed by the statement of the defendant, as found to have been made to Poillon, and in the presence of the plaintiff, that the length of the shore line was between fourteen and fifteen hundred feet. But this was not a statement that it was fourteen hundred and fifty feet long. That it was over fourteen hundred and less than fourteen hundred and fifty feet long would have been consistent with such statement; and proof that such statement was made before the defendant and his sisters had signed the writing, Exhibit A, in which previous negotiations are presumed to have been merged, render the statement inadmissible to alter the writing. Furthermore, it is perfectly apparent that such statement was, as the trial court ruled, but the expression of an opinion by the defendant

Regarding the questions of the willingness of Poillon to contract to purchase the property in question, or to accept a deed of the same in accordance with the terms of Exhibit A, and of the defendant's unwillingness to make such a contract, or to execute such a deed, which questions the trial court decided adversely to the defendant in paragraphs 31 and 32 of the finding, there seems to have been no conflict of evidence.

Poillon never signed or offered to sign Exhibit A.

The plaintiff testified that the $500 paid to him after Exhibit A was signed, was to be paid to the defendant "upon the signing of the contract," and that it was not paid to the defendant because the contract was never signed.

We find no evidence that Poillon was willing to sign any other contract to purchase the property than Exhibit E, or that he was ever willing to accept a deed of the property which did not contain a warranty that the length of the shore line was fourteen hundred and fifty feet. The plaintiff testified that the property he was negotiating to sell was the property as described in the deeds named in Exhibit A. Poillon, as a witness for the plaintiff, testified the basis upon which he calculated to buy the property was the memorandum, Exhibit A, and the representations made by defendant asto the length of the shore line; that the memorandum, Exhibit A, was shown, but that he was buying it upon representations; and that the negotiations terminated because the defendant would not sign the contract, Exhibit E.

The position of the plaintiff, and his claim as to the evidence, is made quite clear by the following statements of his own counsel, made to the trial court during the trial: The Court. ". . . but Mr. Poillon hasn't testified that he is ready to take the land described in those three deeds [the deeds named in Exhibit A]." Mr. Fosdick. "No, your Honor." The Court. "And I infer that he isn't. Is he?" Mr. Fosdick. "He is not. He stated that he is not. He stated that he was willing to take the land described in those three deeds in connection with the representations which had been made by Mr. Lee to him regarding the distance along the shore. . . ." The Court. "The question is, have you got a purchaser ready to buy that land." Mr. Fosdick. "The evidence is that we have. He testified he was —" The Court. "What land?" Mr. Fosdick. "The land described in these deeds with 1450 feet of shore front. . . ." The Court. "Do you also claim that the statements made in regard to the shore front were untrue. . . ." Mr. Fosdick. "Certainly." The Court. "And that that is the reason why Mr. Poillon has not gone ahead with the contract?" Mr. Fosdick. "Certainly. He hasn't got anything like the shore front that he represented." The Court. "Then the court is at liberty to interpret the testimony given as meaning that Mr. Poillon has not found the quantity of land there he expected?" Mr. Fosdick. "That is precisely it." The Court. "Therefore he is not willing and ready to buy the land described in those deeds [the deeds named in Exhibit A] without any reference to outside statements." Mr. Fosdick. "Oh, he never was willing to buy the land described in those deeds unless a survey showed that the distance along the shore was equal to that which was represented the man owned." The Court. "And the survey doesn't show that?" Mr. Fosdick. "Certainly not; doesn't show it."

Even if the court was not bound to accept these statements of counsel as conclusive upon the questions of fact to which they related, yet, as admissions of a duly-authorized attorney, made to the court during the trial of a case, they were to be treated as admissions of his client, the plaintiff, and were to be considered as in the nature of evidence of the facts so admitted.Oliver v. Bennett, 65 N.Y. 559; Wilson v. Spring,64 Ill. 14; Marsh v. Mitchell, 26 N.J. Eq. 497; Perry v.Simpson Waterproof Mfg. Co., 40 Conn. 313; 1 Greenleaf on Evidence, § 186.

After refusing to sign Exhibit E, the defendant was not required to prepare and present another contract, which he would sign. The contract or conveyance which he was willing to sign was sufficiently stated in Exhibit A, and the burden rested upon the plaintiff to prove that he had procured a purchaser ready to sign a contract to buy the property or to accept a deed of it, upon the terms there stated. The evidence clearly shows that the purchaser procured was only willing to sign a contract or accept a deed which contained a materially different description of the property to be conveyed from that contained in Exhibit A, and which imposed upon the defendant an obligation of warranting the length of the shore line to be fourteen hundred and fifty feet, which was not contained in Exhibit A, and which he had never agreed to assume.

The court erred in finding the facts as stated in paragraphs 31 and 32 of the finding, as they were not supported by the evidence, and in not finding the fact, which was proved, that the plaintiff failed to procure a person who was willing to purchase the property in accordance with the terms upon which the plaintiff was authorized to sell it.

As there must be a new trial, it is unnecessary to consider other claimed errors.

There is error and a new trial is ordered.

In this opinion the other judges concurred.