25 A.2d 64 | Conn. | 1942
In this suit the plaintiffs sought to enjoin the prosecution of an action of summary process brought by the defendant to recover possession of a tenement owned by her in the town of Cheshire and to require her to renew a lease in accordance with its terms. The facts found in so far as they are relevant to the decisive questions raised by the appeal are as follows: The defendant is the owner of a duplex house in Cheshire with garage and a barn on the premises. In October, 1938, the plaintiff and defendant negotiated for a lease to the former of the northerly half of the house, space for one car in the garage and also the right to use the barn for manufacturing purposes.
The lease was drafted by the defendant's attorney, given to the plaintiffs and executed and acknowledged by them. It ran from October 10, 1938, to April 30, 1941. The following agreement for renewal was included: "It is further agreed that the Lessees shall have the right to the renewal of this lease for an additional one-year period, provided that written notice of an intention to demand such a renewal is delivered to the Lessor by the Lessees at least ninety (90) days prior to the 30th. day of April, 1941."
After the lease had been executed by the plaintiffs, *618 they delivered it to the defendant. She told them that she would execute the lease and leave it for record at the town clerk's office the next day but has neither executed the lease nor had it recorded. Relying on her promise the plaintiffs made no further inquiry but were of the opinion that the lease had been duly executed and recorded. They lost their copy of the lease and were under the impression that the privilege of renewal could be exercised within sixty days before the expiration of the original term. The plaintiff entered into possession of the premises, have continued to occupy them ever since and have paid the monthly rental specified. In accordance with the terms of the lease the plaintiffs made various alterations and improvements in the barn for the better conduct of their business. The taxable value of the material and equipment used by the plaintiffs is $500 and their expense of moving would be about $100. Subsequent to the occupation of the premises by the plaintiffs, relations between them and the defendant became strained.
On February 12, 1941, the plaintiffs sent the following notice to the defendant:
"This letter will advise you that as per the terms of our lease we are taking our option as stated in the lease. We will therefore remain here for the period stated in the lease, viz., May 10th, 1941 to May 10th, 1942."
The premises are convenient for the operation of the plaintiff's business and other space is not available in Cheshire for that purpose. On April 26, 1941, the plaintiff received a notice to quit possession of the premises on or before May 6, 1941, and on May 9, 1941, they were summoned to appear before a justice of the peace on the 15th day of that month to answer a suit for possession of the premises. On May 14th the plaintiffs brought this suit praying for relief as indicated *619 above. The defenses interposed were the Statute of Frauds and failure to give notice of a desire to renew within the ninety-day period specified in the lease, and the case was tried on these issues. The trial court concluded that to permit the defendant to interpose the defense of the statute would work a fraud on the plaintiff and that, in effect, she was estopped by her conduct from so doing. It also held that, under all the circumstances, the seventy-seven day notice given was sufficient.
An agreement to lease premises for a term of more than one year is within the Statute of Frauds. Simons v. New Britain Trust Co.,
The plaintiffs in their brief base this claim on fraud and on part performance. The claim of fraud in the ordinary meaning of the term is not well supported by the subordinate facts of the finding, but there is sufficient part performance to make out a case of constructive fraud. The doctrine of part performance as related to the Statute of Frauds is based on estoppel. Wolfe v. Wallingford Bank Trust Co.,
The rule with reference to the late notice of renewal is thus expressed in Fountain Co. v. Stein,
The defendant also discusses the question of breach of covenant by the plaintiffs but this was not raised at the trial and will not be considered. Practice Book, 363. *621
Through a clerical error, the judgment required a one-year renewal from "May 10, 1941." This date should read "April 30, 1941" and the judgment should be corrected accordingly.
There is error in the form of judgment only and the case is remanded with direction to correct the judgment in the respect noted in this opinion.
In this opinion the other judges concurred.