Romanoff v. Desanto

The defendant appeals from the action of the trial court in refusing to make certain corrections in its finding of facts, and also from certain alleged errors in the court's conclusion of law upon the facts found. A careful examination of the evidence printed, together with the exhibits made part of the finding, discloses the fact that none of the findings of the court were made without evidence, and that none of the corrections contradictory of the court's findings are established by undisputed evidence. Some of the corrected findings suggested by defendant are constructions of the exhibits in the case, which latter are part of the case on appeal, and are in themselves amply sufficient to enable the defendant to make all of the claims of law set forth in his brief. There is nothing in the record to call for any correction.

The defendant's reasons of appeal also make certain assignments of error, apart from these relating to correction of the finding, which however his counsel state may be grouped under four heads as contained in his brief, and this grouping will be followed in their consideration.

The first point is that "the plaintiff did not prove that he was ready, willing and able to perform his engagements under the contract." The court has found as a matter of fact that he was ready, willing and able, and the defendant must be taken to mean that the subordinate facts found do not support the ultimate finding. In support of this contention, defendant adduces the following facts appearing from the findings and exhibits: that the property as conveyed by Alenier to Morris was subject to mortgages aggregating $500 in excess of the mortgages agreed to be given by defendant to plaintiff; also that the property stood in the name of Morris personally and not in the name of defendant; further, that a lease existed to June 30th, in favor of James Bruce, the original owner, who was in possession, based on a reservation in the original contract of sale given by him to Perlroth; likewise, that plaintiff's offer of performance was contained in a proposed deed by which DeSanto assumed mortgages of $500 in excess of the provisions of the contract; and finally, that in this deed there was no provision for financing the mortgages on the Kensington Street property as provided for in the contract of sale. The facts so stated are true, and found by the court either directly or appearing from the exhibits. They do not in any way, however, conflict with the court's finding that plaintiff was ready to perform. It is true that the proposed deed, not executed, from plaintiff to defendant, was incorrectly drawn, and would not have been a good tender under the contract; but it by no means follows that this deed would have been in fact tendered, or that the other objections would not have been removed had the deal gone forward to performance, which latter was prevented by defendant's direct refusal to perform, and left plaintiff under no obligation to further continue his preparations for closing title. The plaintiff potentially had title, held for him in the name of Morris, and it is not to be presumed that he was without power to arrange all matters so as to carry out performance.

Defendant's second point is that "the Bruce lease was an incumbrance which violated the terms of the contract." As appears in the above finding of facts, the trial court found that this lease was by consent of the parties included in the adjustment of rents provided for in the contract, and further that the parties did not consider it as an incumbrance in their bargaining. This being so, the construction should be according to the intention of the parties to the contract. Inasmuch as they provided for its consideration at the time of closing title in accordance with the view above stated, the court in its holding as matter of law committed no error in the conclusion reached in that regard. How complete and clear was the understanding of the defendant regarding the transaction, is evidenced by the finding (supported by a lease, one of the exhibits in the case) that the day after the contract between the parties was executed, and before the time fixed for closing title and taking possession by him, he leased the greenhouse for a term beginning July 1st, 1923. It is also highly significant that the deed from Bruce to Alenier in stating the incumbrances on the property, makes reference only to building lines and two mortgages, ignoring as an incumbrance his own right to occupy the greenhouse during June, 1923, and making no reservation regarding the same. Morris could have sold the property to an innocent purchaser, free from Bruce's right of occupancy.

As a third point, defendant contends that the court erred in admitting testimony as to the oral agreement regarding the Bruce lease in connection with the written contract of sale, on which this action is founded. It will be noted that this right of Bruce was secured to him in his contract of sale with Perlroth, as appears in the finding, whereby he was to occupy his house and greenhouse until June 30th, 1923. The parties in argument, and the trial judge in his finding, calls this right a lease; it was in effect a lease for one month, and evidently the parties to the contract in suit so regarded it when they bargained at the time of making the contract, which it will be remembered contained a provision as to adjustment of rents. This evidence was admitted without objection during the argument, inasmuch as the court was willing to go into the matter fully, since the subject had not been fully developed in testimony before given. This appears from the record printed for the purposes of correction, to which we may refer to explain the finding of the court. The court had the right in its discretion to hear this testimony at that point of the trial. Defendant does not stress the point of the inadmissibility of the evidence as such with relation to this part of the transaction, but claims that the conclusion derived from this testimony, and all other testimony of like nature adduced at the trial, has no place in the case, since it was an attempt to add to the written contract, matter supplementing and modifying it. If this was the effect of the testimony and the conclusion derived therefrom, defendant's contention would have merit, but we do not consider this to be the case. This agreement was one that by itself could be concluded orally, in effect, as we have said, a lease for one month. It should be noted that this minor contract is in no way contradictory of the written agreement; whatever force it may have is supplementary. Such subsidiary and collateral parol agreements are not uncommon in taking care of some minor detail in connection with a written contract of sale; the right to remove a small building, or to take minor crops are often dealt with in this way. We have recognized this doctrine; that is, that where the parties to an agreement do not intend to embody their entire oral agreement in the writing, the rule invoked by the defendant does not apply. Strakosch v. Connecticut Trust Safe Deposit Co., 96 Conn. 471,479, 480, 114 A. 660, and cases there cited, particularly:Hall v. Solomon, 61 Conn. 476, 482,23 A. 876; Averill v. Sawyer, 62 Conn. 560, 568, 569, 27 A. 73; Caulfield v. Hermann, 64 Conn. 325, 327,30 A. 52.

Finally, defendant insists that there is no legal basis for the damages awarded plaintiff of $250 for commission paid to real estate agents, on the ground that the general purport of the contract of sale shows that commissions were only to be paid for effecting exchange, and not for bringing the parties together in an agreement for exchange. We fail to gather such an intent from the agreement, especially as the statement as to commissions stands by itself, not in any way connected with or subordinated to any other action contemplated by the parties to the contract. The instrument simply says: "Said Morris [plaintiff's agent] to pay Green and Polsky $250." The trial court found the defendant obligated to pay this sum, as part of plaintiff's damages, and there is nothing in the facts found or in the exhibits to show that the conclusion is incorrect.

There is no error.

In this opinion the other judges concurred.