138 Conn. 657 | Conn. | 1952
The plaintiffs as assignees of a written contract by the defendants to convey a building lot in West Haven to Peter Horbick, the plaintiffs’ assignor, brought this action for specific performance. The defendants pleaded by way of special defense that the written contract failed to state the true intent of the parties because as an inducing consideration Horbick had agreed that he “would not assign his interest in the same to any other party without securing the consent and approval thereto of said defendants.” They further alleged that he had violated this provision. The special defense also alleged that it was agreed that Horbick would utilize stone on the premises to build a house. During discussion of the disposition of the
The case was claimed to the jury, but by agreement of counsel only a single issue was submitted to them. This was done by way of an interrogatory. All other issues were tried to the court. It found the following facts, which are not subject to correction: Several years prior to 1948 the defendants had purchased a real estate development in West Haven consisting of thirty lots. They had sold some of them from time to time and houses had been built thereon. No Negroes reside in the development. Late in the fall of 1948 Peter Horbick contacted the defendants about purchasing lot 52. This lot consisted largely of rock, which Horbick, who was a sculptor and stone mason, planned to utilize in constructing a dwelling. On December 28, 1948, Horbick and the defendants entered into a written agreement, annexed as an exhibit to the complaint, for the purchase and sale of the lot. This agreement was in the form of a bond for a deed. It acknowledged a down payment by Horbick of $50 and contained the defendants’ promise to deliver a warranty deed to him on or before December 31, 1950, upon his payment of the $250 balance of the purchase price as prescribed. It further provided that the instrument should not be recorded.
Early in May, 1949, Horbick asked permission of the defendant Clinton to sell his interest in the premises because he had decided not to build a house as agreed
At the trial, as stated above, a single issue was submitted to the jury upon an interrogatory approved by counsel for both the plaintiffs and the defendants: “Was it understood between the Clintons and Horbick that Horbick could not transfer his rights thereunder to any person or persons without the consent and approval of the Clintons?” By their Special verdict the jury answered Yes. The principal contested issue, as the case was tried, was whether the contract of December 28, 1948, between the defendants and Horbick included, in addition to the written provisions contained in the bond for a deed, a further oral agree
The court, however, proceeded to find that the contract of December 28, 1948, comprised not only the bond for a deed but also an oral agreement that Horbick would not assign his interest to anyone without first obtaining the approval and consent of the Clintons. This vital finding is challenged by the plaintiffs. The record suggests doubt as to the theory adopted by the court in reaching it and giving it effect. The special defense alleges that the approval provision was a part of the agreement but that “due to lack of legal training” the parties did not include it in the writing, and so the bond for a deed “does not state the true intent, meaning and contract of the parties” and should be “reformed and corrected” to contain the approval provision. Reformation is likewise requested in the prayer for relief in the defendants’ counterclaim. Yet there are no allegations of mutual mistake sufficient to warrant the reformation of any contract. See Gavin v. Johnson, 131 Conn. 489, 493, 41 A. 2d 113; Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 549, 72 A. 2d 482; Practice Book, 1951, Forms No. 223-227. Further, although one of the court’s conclusions was that the bond for a deed “should be and is reformed, corrected and modified to incor
The court’s citation of Cohn v. Dunn, 111 Conn. 342, 348, 149 A. 851, as supporting its conclusion that the oral approval provision was an "agreed condition” at the time the bond for a deed was executed, "although not expressly incorporated therein,” indicates that it finally decided that the oral provision could not be incorporated in the December 28 agreement by reforming the bond for a deed on the ground of mistake, but that the provision should be held to be supplemental to the bond for a deed as a contemporary oral agreement. Such an agreement could not be given effect without violating the parol evidence rule unless there was testimony upon which the trier could reasonably find that the parties intended to supplement their written contract by a contemporary oral agreement. Nagel v. Modern Investment Corporation, 132 Conn. 698, 700, 46 A. 2d 605. This principle can only avail to enlarge the written contract by including the oral agreement when the latter is contemporaneous with the former. Unless the oral agreement was contemporaneous, the principle has no application. Therefore, the question decisive of the appeal is whether the court’s finding that the oral approval provision was agreed to on December 28, 1948, can be sustained.
The burden of proof upon this issue rested upon the defendants. Horbick testified that the bond for a deed was the agreement of December 28, 1948, and categorically denied that any supplemental oral agreement as to approval by the defendants was made at that, time. While the court might have rejected this testimony, it could not reasonably find that a contempor
In so far as inferences are concerned, there is no evidence which affords the basis for a reasonable inference sufficient to support the court’s finding. During the colloquy with counsel in considering the disposition of the issues, the court intimated that Horbiclc’s request of Clinton for permission to sell his interest might afford the basis for such an inference. This is not the case. The undisputed evidence indicates that, when Horbick, in consequence of his decision not
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.