137 A. 751 | Conn. | 1927
This is an action to recover two sums of money which the complaint states that the plaintiff paid, laid out and expended for the defendant, $373.50 alleged to have been paid for the purchase of a certain lot of land, and $26 alleged to have been paid as a deposit in the transaction, and also to recover $63 which the complaint states to be the value of work performed by the plaintiff in grading about the defendant's house. Judgment was given for the plaintiff to recover these items in substantially the amounts claimed, less a deduction on account of a sum found due the defendant upon a counterclaim filed by him.
The finding leaves much to be desired in the way of clarity and completeness and the situation is made *289
more confusing by the trial court's disregard of our oft repeated suggestion that the memorandum of decision should not be made a part of the finding. The inadvisability of incorporating such a memorandum in the finding is made apparent here by a discrepancy between the two as regards at least one important fact. We must follow our established practice in such a situation of adopting the facts expressly stated in the finding as those upon which the appeal is to be determined.Crighton v. Jacobs,
The finding states the following facts: The plaintiff wishing to acquire a certain lot of land, was negotiating with one Gwatz, who held a contract for its purchase from the owner and in the course of the negotiations paid him $25 through the defendant. The contract provided for the payment of the purchase price in instalments. The plaintiff and the defendant met Gwatz at the office of a realty company which was acting for the owners of the lot and there the plaintiff gave to the representative of the company a check for $373.50, the amount of the payments Gwatz had made under the contract. It was then agreed that the contract for purchase should be put in the name of the defendant and this was done. Thereafter the plaintiff spent $63 toward grading the lot. The defendant subsequently tendered the owners of the lot the balance due them under the contract and demanded and received a deed of it in his name. The plaintiff never demanded that the defendant convey the land to him or pay him the money he had spent nor did he offer to pay to the defendant the money the latter had spent for the purchase of the lot. The defendant retained possession of the premises.
The placing of the contract in the name of the defendant *290
gave rise to a resulting trust in favor of the plaintiff. Barrows v. Bohan,
There is error, the judgment is set aside, and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.