*1 do we find harmful under the facts the findings, error.
There is no error. other In this concurred. opinion judges American News State of Connecticut Company et al. Comley Murphy, Shea,
King, J., Shapiro, C. Js. *2 January
Argued June 7 decided *3 M. Alcorn, H. Meade with whom were David Jr., Elliot F. Shea, on the Ralph G. and, brief, Alfred Wechsler, for appellants (defendants). Rubin, assistant with
Jack general, attorney M. Harold was attor- Mulvey, brief, on the whom, for appellee ney general, (state). discloses the finding following J.
Comley, facts: In the state of Con- July, plaintiff, bids for the restau- necticut, operation solicited of built and state on the equipped by rants be By July 29, a letter dated Turnpike. Connecticut commissioner transmitted 1955, the highway of the named defendant and to others predecessor to bid a set of documents the invitation constituting for food concession on the Connecticut Turn- named and its pike. predecessor indiscriminately as the defendant.
will be referred to invitation included in this documents One report February copy bid was a consulting engi- Colpitts, firma and Coverdale high- prepared report for the had been neers. This estimating gauge traffic- way as commissioner study turnpike. made- The traffic flow on the designed, Turnpike and the Connecticut before highway existing could then no there was comparison. precise for a serve as basis February Colpitts report 1,. The Coverdale the Connecticut between noted the similarities respective- turnpikes Jersey their New type population lengths, served, areas of anticipated. the traffic estimated traffic eight assumption be there would flow on the fifteen barrier-type a toll rate of toll stations passenger per each it contained station; car at cents special tickets commuter low-rate or no mention passenger and it estimated cars; for short-haul hypothesis access that out-of-state flow on traffic completed by estimated dates. highways would *4 complete report pointed such failure to out that The possible highways dates was estimated the access delays of the amount would affect such and that Turnpike traffic. Connecticut highway commissioner 1955, 23, March On requested from Coverdale information additional concerning Colpitts traffic and rev- estimated and response turnpike. proposed In enue Colpitts request, transmitted and Coverdale this reports, highway one dated two commissioner to the May April 27, and one dated 1955, 29, May report the toll recommended that 27, 1955, of passenger at the four toll stations cars for rates from fifteen to increased New Haven be of west an increase that such cents; it estimated twenty-five in decline percent in a 23 rates would result in toll it 1958; the year for vehicle-trips” “toll-station toll over that, increases, per- with such estimated the toll through traffic cent the passenger-car pass through Haven would west New stations only percent and 10.5 one toll station that only would New Haven west of trips the passenger-car stations; the toll- all toll that four through pass de- and 1960 would vehicle trips station the num- rate that increased; crease as the toll than cars would be less of out-of-state passenger ber May report. report the 1954 anticipated low-rate issuance of also discussed the turnpike opened as tickets as soon commuter the trips bulk of from Greenwich to Branford. was char- Turnpike on the
estimated Connecticut relatively trips, acterized short-distance estimated the number of trucks using than number anticipated would less turnpike in the 1954 report. and May 27, 1955, of April 29, 1955,
The reports not included the 1954 in the state’s were invitation to bid on those July 29, although com- were reports possession highway missioner on date. The commissioner highway did not disclose information included those to the defendant or even mention fact reports such reports existed. The defendant did of the existence of April 29, learn May until the trial of the 27,1955, present case.
On submitted its August *5 $801,201 as an annual minimum bid guaranteed rental, and this was accepted bid by state bid received. A contract highest was executed January
between the under terms of was to 12, 1956, which the state eight equip build and restaurants on the Connecticut Turnpike, operate and the defendant was to them monthly per- until for a June rental of gross proviso, however, cent sales, guaranteed that the defendant minimum an annual eight rental for all restaurants of Para- $801,201. graph incorporated 11 of the instructions to bidders, contract, reference referred to the Cover- Colpitts dale and aas source for estimated traffic volume and established “as basic standard Colpitts measure, the Coverdale & forecast that eight will recorded at there be toll stations on the Turnpike, during year the calendar a total of ” vehicle-trips.’ 44,940,000 ‘toll-station The same paragraph, having set this forecast as an estimated figure, proceeds provide adjustment an in the rent in the event the traffic does not reach the esti- figure: mated “If the number of ‘toll-station vehicle- trips’ any year commencing July fiscal be less should than 44,940,000,the Commissioner will reduce the concessionaire’s Minimum Guarantee for year by percentage equivalent per- that fiscal ato centage toll-paying of reduction in transactions be- low the standard measure.” 44,940,000 was no There representation guarantee by or trips there would 44,940,000 be toll-station vehicle any year. provides one The contract further Turnpike using “[t]he will a toll road a barrier type system toll collection which will allow toll-free Turnpike use for short distances and local trips.” passenger-car
The state established toll rates of twenty-five eight cents each at toll stations Turnpike, January on the Connecticut effective *6 for commuter tickets to sell began The state 1958. and one-third of cars at the rate eight
passenger twenty-five ticket, regular instead the cents per time 1958. At the 2, toll, January cent beginning in link Expressway the Cross-Bronx trial, and was yet York had not been completed New the end of to be before completed expected the trips on of toll-station vehicle number 1, July in the fiscal Turnpike year Connecticut of which 31,122,549, was 30, 1959, 1958- June using drivers taken 3,150,977 were by passenger-car 1, July In year commuter tickets. fiscal the toll-station ve- 1959- the number of 30, 1960, June were 4,725,748 hicle trips 43,589,831, commuter drivers passenger-car using taken by in number trips tickets. The of toll-station vehicle the 1960-June year 30, 1961, fiscal July by of which were taken 48,976,134, 5,928,500 passen- drivers commuter tickets. ger-car using annual minimum rental guaranteed $801,201 1, 1959, became effective September first month which all restaurants were eight full Since that has operation. time, defendant refused to annual minimum but pay guaranteed instead to paid has the state its percent gross is a sales, which lesser amount than the guaranteed annual minimum, adjusted. The trial court found that owes rent $374,632.88 period amount September 1959, to June $483,280.30 for the July 1,1960, 30,1961. to June period The defendant contends that the plaintiff’s failure transmit the Coverdale Colpitts April 29, May 27, the defendant time the defendant prior submitted its bid constituted fraud constructive upon defendant. others invited defendant and
When July dated bid on the food concession letter *7 had of three copies the Coverdale 29, 1955, plaintiff in defend- its reports possession. and Colpitts the no to plaintiff duty give ant admits that had of information the prospective operation about any to the defendant. turnpike once the sent however, argues, to the defendant February invitation to then bid, of the part to make full disclosure obligated became April 29, 1955, May 27, to its the defendant refers claim, In support statement in 23 Am. Fraud and Jur., the following “It is firmly 83: established Deceit, partial § with the disclosure, accompanied and fragmentary of material and facts, wilful concealment qualifying an statement, not a and is as much a fraud as is true which, is. misrepresentation, effect, actual half a truth has been declared to be Telling equiva- half. Even lent to other one concealing though to as to a if he speak matter, is under no obligation to do either or in so, voluntarily response undertakes is bound to only truly he state inquiries, he but also not conceal tells, suppress what or his which will knowledge materially facts within any If those stated. he at he must speaks all, qualify fair a full and disclosure. if one Therefore, make conceals and such suppresses facts wilfully leads other to believe that thereby party matters to which the statement made are relate from he they actually what is are, different guilty a fraudulent concealment.” by cases cited the defendant
Among support Bonding American Co. v. Fourth of its position Bank, National Ala. So. 480. That case which, upon request a bank, a situation concerned had closed the guardian of a disclosed ward, but con with the bank account out his guardianship fraudulently had been the funds the fact that cealed debt to the bank. Other used to pay guardian’s of fraud on the issue the defendant cases cited In Rogers include the following. ulent concealment defendants Warden, 2d P.2d 286, 125 20 Cal. experience with no business induced a widow mineral certain ownership rights her away sign merely that her signature the representation the title clear gesture mechanical necessary her fact from lots, concealing the owner *8 Dyke in the property. that she had certain rights 344, Zaiser, 182 P.2d v. 80 Cal. 2d App. for amuse premises the lease of certain concerned the ment lessor represented purposes. a of business had been stipulated
lessee that
volume
At
time these
were
representations
established.
the
the
that the police
lessor knew
being made, however,
a
the
to shut down
substantial
portion
planned
Stevens,
Berry
In
v.
168 Okla.
31
124,
premises.
an
defendant,
through
agent,
P.2d
the
pur
chased certain lands.
volunteered infor
agent
the
oil fields
mation to
grantors
concerning
a
on the land but
mention
large
present
neglected
In
oil well which had
been
recently
completed.
Randall,
Newell v.
32 Minn.
Kraft
the seller of a house discussed the plumbing system
the fact that
but
include
the house was
neglected
public
not connected to the
sewer.
In
v.
Twing
Schott, 100, 338 P.2d
Wyo.
defendants
stated
system
of a trailer
court
sewage
it was
adequate
connected to
water.
city
system
was in fact
sewage
unworkable,
there was an additional
for water
charge required
Ulrich,
private company. Sullivan
a
provided by
v.
The Restatement of Torts states: “A statement in a business transaction which, while stating truth far so goes, maker knows or believes materially to be because of his failure misleading to state matter ais fraudulent qualifying misrep- resentation.” Restatement, 3 Torts §
The facts in the instant ease are substantially different from the circumstances presented cases and authorities cited above. The plaintiff *9 in the case was a present not shrewd businessman who took unfair of one unlearned advantage the affairs business. The defendant certainly in a to have more position of the busi- knowledge ness of restaurants than was the Nor plaintiff. did the make plaintiff statements which, while truth, were stating materially be- misleading their cause of failure to state matter. qualifying Both must been have parties acutely aware of the myriad of contingencies might possibly arise of business dealings out a concerning not highway built or even yet finally designed. To make a out
111 show a must misrepresentation, party case of which he was a material fact on representation rely in fact and on which he did entitled to rely Corporation Aggregates Construction his damage. F. E. &
State, A.2d 274; 148 Conn. Co. v. Stamford,
Construction Conn. A. sent to the invitation to bid, plaintiff itsWith 1,1954, Coverdale copy February “Esti This is entitled report and Colpitts report. of the Pro
mated Traffic and Revenues Toll-paying from Greenwich Connecticut posed Expressway what more than nothing The Killingly.” report In no did way to be—an estimate. purports kind of traffic that volume or represent as this to be considered report was anticipated by did not or a certainty. guarantee or of traffic on state that the traffic conditions type substantially would be the Connecticut Turnpike Turn Jersey similar to the conditions on the New the two turnpikes pike. report merely compared which could highway there was no existing because a comparison as a more basis for then serve exact Turnpike. Connecticut proposed the date not guarantee could plaintiff, course, would be com access highways when out-of-state and did not It also could guarantee pleted. at the toll rate would remain
represent rate in the 1954 or postulated fifteen-cent be issued. no commuter tickets would low-rate provides 13-164 the General Statutes Section from tolls must be at least revenue derived and interest principal pay sufficient highway they authorized to finance the bonds *10 be considered a part This statute must become due. and the defend- plaintiff
of the contract between the 112 a time existing statutes at
ant. “It true that must a of it and become part contract is made to that if an provision into it as just express read the con- where inserted therein, except effect were Ciarleglio contrary a intention.” discloses tract Inc., & A.2d Co., Benedict 127 Conn. no representations thus made 593. The or type the volume concerning defendant Turnpike. which would use the Connecticut traffic defendant transmitted to the report opinion an or statement as estimate merely its in making be useful to might incorporated the instructions 11 of Paragraph bid. in the the minimum rental in the contract adjusts number of vehicle total toll-station event the estimated number. falls below trips makes The defendant much fact reports April had in its possession these and but did include May 27,1955, like in its to bid. The two reports, invitation estimated only They were estimates. report, the 1951 of the traffic on the Connecticut the character toll somewhat if changed would be Turnpike if low- were increased to cents and twenty-five rates as the However, tickets were sold. rate commuter made an estimate only Coverdale as in no way served Colpitts representa- or statements by tions fact definite the plaintiff, duty had no to submit the reports the plaintiff May 27, 1955, its invitation April are unable the defendant’s accept bid. We to. an or an opinion, claim that estimate expressed traffic a on which was 1951, concerning highway and was not only designed completed then being later could be years until five relied repre- sentation of matter fact.
113 that defendant’s claim up now take We from conduct is its estopped by inequitable of the contract. “For the application enforcing must generally there equitable estoppel, doctrine conduct or decla some intended deception be or such to be party estopped, gross rations of the constructive his as to part amounts negligence his has misled to which another been fraud, by A. Bland 61, v. 123 Bregman, 65, 192 Conn. injury.” Kent, Monterosso v. 350, 346, 96 Conn. 703, quoting Brant v. Virginia which, quoted 113 A. 922, turn, “In Co., L. Ed. & Iron 93 23 Coal U.S. upon . . silence is the conduct relied case . where of circum the existence estoppel, rise to give one claimed duty impose upon
stances is known to disclose the fact which to be estopped . But there is no where duty speak . . essential. within the both equally knowledge
the facts are
one
the estoppel,
claiming
or where
parties
has not in fact
has con
equal knowledge,
though he
. . .
means
it.
and available
of acquiring
venient
that
the silence be such
moreover, necessary
is,
It
.
mislead the
. .
naturally
party
as would
other
has been or will
estoppel
claiming
that
party
he
have the
to loss unless
can
advan
subjected
and there is no
his
favor.”
tage
it,
presumption
City Press, Inc.,
Flaxman
Capital
Conn.
ant to bid was so along grossly to amount constructive fraud. The negligent argues plaintiff’s silence was as would mislead naturally such the defendant be- the defendant of essential deprived facts, cause result as a and that misled, the defendant was has been the defendant silence misleading of this injured. *12 of has no estoppel application
The doctrine prevent silence did not case. The plaintiff’s present access from that out-of-state learning the defendant was information delayed. would Such be highways to both parties. available easily equally 1954, of February 1, and Colpitts report Coverdale the time the and a half old at nearly year defendant was its bid. Also, defendant made rates the toll might with knowledge chargeable tickets or low-rate commuter increased be more If defendant wanted issued. might information these concerning and accurate recent it have made inquiries highway could matters, never suggested commissioner. or that the defend was all-inclusive the 1954 advanced not seek additional or more ant should 29 and May 27, April information. more than what con estimate nothing did if arise certain factors were tingencies might of the then operation proposed during effect of the state to forward such The neglect highway. did not to the defendant constitute estimates material facts. It is fundamental withholding claims an must estoppel that a who show person has exercised due to know the diligence that he not did know only and that he not the true truth but also lacked things any reasonably state of acquiring knowledge. Spear- means available Modern Floors Newman, Corporation, Inc. v. 149 Burke, Myers 565; 175 A.2d v. Conn. 120 A. 88. 76, 179 Conn. are likewise unable to defendant’s accept.the
We is entitled to a reformation of claim that the con- rent. minimum revision the guaranteed tract reason mistake or by reason of mutual “If, by or fraud coupled which is mistake unilateral party, of the other on the conduct part inequitable intent the true express does not a written agreement reformed.” may be agreement parties, Surety Bodie v. National 143 Conn. Corporation, Seymour Hori- Water Co. 908; A.2d schak, defend- A.2d 112. The 435, 442,181 Conn. mis- mutual does contend that there any ant 1956; of January 12, in the contract take involved a unilateral mistake apparent; no evidence of plain- if were a unilateral mistake, even there or conduct was not fraudulent inequitable tiff’s *13 is defendant therefore reasons already given. its with the not to contract entitled reformation plaintiff.
The defendant further the contract argues is infected defects January the and of which mutuality, absence of either vagueness contract defects would render the unenforceable. is
There no absence of Under terms mutuality. the contract, plaintiff of the the to build equip the restaurants Connecticut eight Turnpike. is to these restaurants until June operate 1968, monthly for certain rental. The contract for an adjustment of the rent
expressly provides the until all restaurant facilities should be full also operation. undertook normal maintenance the restaurant facilities. Each party thus has certain and duties con- rights under the The contract remain tract. is to in effect until Neither can 30,1968. June termi- party unilaterally the date. contract before There is nate no of mutuality. absence the the
On claim of vagueness, defendant makes
116
much,
following language
“If
contract:
of the
the
contractor
. . .
determine that
the
State
shall
the
specifications, the
the intent of the
violated
has
right
to seize
contract,
the
to void the
reserves
State
damages,
liquidated
performance
bond as
operator
assign
contract to another
period,
readvertise the
contract
or to
balance
the mean
maintains that
contract.” The defendant
specifications”
ing
is so
the words “intent of
vague
plaintiff,
has
license
effect,
that the
answer
at will. The short
contract almost
void
any right
in fact have
does not
that the
unilaterally except
far as
so
contract
to cancel the
Presumably,
by
words
provided
contract.
meaning
specifications”
and were
“intent of the
have
parties
meaningful
the contract
at the
to the
time
appear
that the defendant
executed.
does
It
any objection
Furthermore,
to them.
then made
to void the
plaintiff has made no effort whatever
brought
present action
instead has
contract but
by
performance
compel
defendant. “The con
legal
a contract ‘cannot be
effect of
struction
changed
varied
reason of its inconvenience
or
”
parties, or the unreasonableness of the terms.’
Co.,
Mills
Conn.
Whitaker
Cannon
quoting Lakitsch v.
Brand,
A.2d
Conn.
*14
provision
capable
If
A. 865.
is
of two
388, 393, 121
interpretations,
possible
the one which favors the
preferred.
validity
instrument
Bassett v.
of the
action The amount bond as liquidated damages.” formance minimum an- guaranteed $200,000, “25% to the nearest adjusted figure,” rental $1000 nual with the conjunction only perform- has meaning It has no relationship whatever bond. ance for rents owed. suit present *15 error. is no
There opinion Js., In this C. J., Shapiro, Shea King, concurred. (dissenting). farcical seems rather It J. Murphy, stamp approval put on
to for this court to me inequitable in this when conduct of state case state action had the have condemned such would to bid the invitation not been the offender. When highway July commis- was on 29,1955, sent out contemplating possession, and was sioner had in his special reports which action in accordance two with, engineers requested were from traffic who had he advising was The information these him. although, after to the bidders forwarded the contract with the defend- bids received and were proceeded put the commissioner executed, ant engineers. recommendations into effect the report sent the bidders The May, 1955, rate. fifteen-cent toll on a based increasing report the toll west rate recommended twenty-five although this cents, Haven New through change traffic the toll decrease the would percent. by revenue In other words, stations greater, through but number tolls would be potential turnpike who would be travelers on the would fall off at the restaurants customers May, one-quarter. also almost of low-rate commuter tickets discussed issuance passing number of vehicles increase the which would through these toll stations. likelihood that up appetite work an customers would short-haul trips slim. But the bidders were not their would be reports, aas result of the the commis- that, advised authority statutory special given at the sioner was legislature grant in June, 1955, session *16 Spec. Acts, Public reduced tolls to commuter traffic. Sup., §4; No. Cum. June, 1955, Sess., That act [b]). 1212d 13-162 Statutes (General § § not pub- effective but became on June the defend- 1955. August 16, lished until after Yet change this knowledge ant is chargeable no made to bid law the invitation although to be had and the bids mention of commuter traffic in on August 10, toll-station vehicle
The estimate of 44,940,000 as the basic in the contract 1958 was set out trips in computing standard measure to be used Twenty- contract. defendant’s under liability 10,336,200, three of that percent figure the 44,940,000 trial court should have added to in toll due to for the reduction traffic compensate result be in toll fare. The would the increase should have reformed the trial court 55,276,200. contract the basic by substituting 55,276,200 In standard measure. fiscal which the any year trips, number of toll-station vehicle exclusive commuter ticket exceeded traffic, 55,276,200, minimum annual rental would be due. guaranteed This would equitable negate disposition state’s underlying philosophy position can do no King wrong.” “[t]he