Hungerford v. Hicks

39 Conn. 259 | Conn. | 1872

Paek, J.

The finding of the court excludes all ground for claiming that the plaintiff had any thing to do with the sale of the premises in question to the Messrs. Stevens. The property was sold to them by the defendant, and they bargained to sell the same to Botsford & Forester, and when the deed was given, it was arranged by all the parties that the land should be conveyed directly by the defendant to Botsford & Forester, which was done. It is common for one pez’son to purchase real estate and direct the deed to be given to a third party to whom he has since sold the property, in order to save the expense and trouble that would attend a circuitous conveyance of the title. The mere fact that the deed was given by the defendant to Botsford & Forester does not preclude him from showing what were the facts concerning the conveyance.

It is clear from -these facts that the plaintiff cannot recover on the special promise of the defendant to pay him the sum of one thousand dollars, unless the plaintiff is right in his claim, that under his arrangement with the defendant the latter had no right to sell the property himself to a purchaser whom he had procured without any aid of the plaintiff, and that hence in the sale that was made the defendant is liable on his contract to the same extent as he would have been if the purchaser had been jxrocured by the plaintiff.

It is difficult to see what foundation there is for this claim. The defendant did not bind himself not to sell the property if he could find a purchaser. The promise to pay is on condition that the plaintiff “ will find or send a purchaser.” He did neither. How can he recover ? It is said that the defendant is estopped from claiming that he sold the property to a purchaser procured by himself. But how could this benefit the plaintiff when he is bound to prove that he “ found or sent ” the purchaser ? • He could not prove this by the estoppel, Which he claims; for it would not follow that the purchaser was “ found or sent ” by the plaintiff, even if the defendant should be precluded from showing that the purchaser was procured by himself.

But it is manifest that there is no foundation for an estoppel. If the plaintiff had desired to prevent the defendant from selling the property, he should have made a contract with him to that effect. The arrangement between them does not bind the plaintiff to do anything. He is not bound to search at all for a purchaser ; and it would be strange indeed if the defendant should put it out of bis power to sell the property to a purchaser, procured by himself, under such circumstances.

It is further claimed, that the plaintiff is entitled to recover on the common count for what his services were reasonably worth, from and after the time when he was told by the defendant that “ he was doing well, and to go on and make a noise about the property and that it must oe sold.” At this time the defendant had contracted to sell the property to the Messrs. Stevens, and was morally bound to fulfill the agreement. He could not therefore honestly keep his engagement with the plaintiff, and the plaintiff might well regard the contract as rescinded.

Had this claim been made in the court below it would have been entitled to great consideration. But it was not made, and we are therefore precluded from considering it.

A new trial is not advised.

In this opinion the other judges' concurred ; except Foster, J., who having tried the case in the court below did not sit.