Barber v. Baldwin
| Decision Date | 07 June 1949 |
| Citation | 67 A.2d 1,135 Conn. 558 |
| Court | Connecticut Supreme Court |
| Parties | BARBER v. BALDWIN et al. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, New Haven County; O'Sullivan, Judge.
Action by Florence H. Barber against Alfred C. Baldwin, Jr., and another for possession of a shore cottage, wherein defendant filed a cross-complaint asking for specific performance of an agreement to sell the realty and for an injunction. The case was tried in part to the jury, which was discharged during the trial, and the issues were determined by the court. From a judgment for the defendants on the complaint and for the defendant Vera T. Baldwin on the cross-complaint, plaintiff appeals.
No error.
Joseph Shelnitz, New Haven, for appellant (plaintiff).
Thomas R. Robinson and Isadore Chaplowe, New Haven, for appellees (defendants).
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and COMLEY, JJ. (Judge JOHN M. COMLEY of the Superior Court sat for Judge DICKENSON.)
The plaintiff as owner brought this action against the defendants, husband and wife, for wrongfully taking possession of her beach front cottage property in East Haven and for the conversion of the furniture therein; and she claimed judgment for possession of the real estate and damages. The defendant husband's answer was a denial and alleged that whatever acts he had performed were done as agent for his wife. Her amended answer was also a denial. By way of special defense, she alleged that the plaintiff had agreed to convey the premises and furniture to her for $4000, that pursuant to the plaintiff's direction she had taken possession under the agreement and that, though she was ready, able and willing to pay the $4000, the plaintiff refused to deed the property to her. These facts were also made the basis of a cross-complaint by the defendant wife in which she claimed a decree for specific performance, further equitable relief and damages. All of the defendants' affirmative allegations were denied by the plaintiff's replies. After the case had been partly tried before a jury, it was taken from them so that the court might first decide the equitable issues under the special defense and cross-complaint, and upon the completion of the trial the court rendered judgment for the defendants and decreed specific performance in favor of the defendant wife. The plaintiff has appealed.
The material facts found by the court are not challenged and may be thus summarized: Since 1913 the plaintiff had been the owner of a piece of property fronting southerly 116 feet on Long Island Sound. On the southwest portion of it was the cottage, access to which from the highway was by a well-defined path or right of way along the rear of the plaintiff's lot and other shore lots to the west. This path had been used by the plaintiff and others since 1913. She had, however, no right to it by deed. Her tract, which had no fences, extended north, beyond the lot in question to the highway, but the swampy nature of the land prevented access over it. For a number of summers prior to 1945, the plaintiff had leased the cottage to the defendant wife, to whom we shall refer as the defendant, at rentals of from $150 to $250. In May, 1945, the defendant asked to rent the cottage for another season. The plaintiff, owner of other real estate and experienced in such matters, suggested that he defendant buy the property at $4000. The cottage contained secondhand furniture valued at $100. On June 2, 1945, the defendant, in discussing the proposed purchase, told the plaintiff that if she bought the cottage she would forthwith make substantial improvements, which she detailed. Thereupon, the plaintiff agreed to sell and the defendant to buy upon these terms: The purchase price, subject to the usual adjustments as to taxes and insurance, was $4000, to be paid at the closing, when the deed was to be delivered, on June 27, 1945; the plaintiff was to furnish a certificate of title and deliver a warranty deed including a right of way to the premises; the land with the cottage thereon was to be bounded on the west by the land of Vought and was to run from Long Island Sound on the south to the northerly edge of the path referred to above, and the easterly line was to parallel the westerly line through a point eight feet easterly of the easternmost face of the steps on the easterly side of the cottage porch; the furniture with certain exceptions was to be included; the defendant was to take possession the next day, June 3, and proceed with the improvements. The defendant was given the keys on June 3, took possession and shortly thereafter started to make the improvements. These involved the expenditure of over $1000 and were made with the plaintiff's knowledge and in reliance upon her agreement. The plaintiff failed to deliver a deed at the time agreed.
In August, 1945, the defendant paid the 1944 tax bill of $122.71 upon the plaintiff's request and agreement to credit it on the purchase price. Upon learning that the reason assigned by the plaintiff for her refusal to execute a deed was her inability to convey a right of way, since her title searchers advised her that there was none appurtenant to the premises, the defendant offered to accept a conveyance provided the $4000 consideration be held in escrow until the plaintiff in a legal manner established her right to a right of way by adverse use, but this offer was refused. Thereupon, the defendant agreed to accept a deed without having a right of way expressly conveyed, but without effect. Meantime, the plaintiff asserted that her agreement was that the easterly line should be but three, instead of eight, feet easterly of the easternmost face of the porch steps. The plaintiff has never executed a deed to the defendant, and the defendant has made no direct tender of the purchase price. By 1946 the parties had discontinued their efforts to close the deal. At all times the defendant had the necessary funds to consummate the transaction and was ready, able and willing to perform whenever the plaintiff would convey. The defendant husband was not a party to the agreement but acted as the defendant's agent. The defendant has been in possession of the premises since June 3, 1945.
The trial court gave judgment for the defendant upon the cross-complaint, granting her specific performance upon the...
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State v. McCall
...authority of the trial court to control the order of presentation of testimony. See Practice Book § 283; Barber v. Baldwin, 135 Conn. 558, 564, 67 A.2d 1 (1949). In any event, the ruling, even if technically erroneous, became harmless once the defendant did present his insanity defense, sin......
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Matos v. Ortiz
...decide disputes of fact material to its resolution, no matter that the underlying claims were actions at law. Cf. Barber v. Baldwin, 135 Conn. 558, 564–65, 67 A.2d 1 (1949) (court may itself resolve disputes of fact material to defendant's equitable counterclaim, and if those findings dispo......
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State v. Mariano
...the order in which the issues should be tried and in hearing and deciding the case on the theory on which it was tried. Barber v. Baldwin, 135 Conn. 558, 565, 67 A.2d 1; Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546; Nearing v. Bridgeport, 137 Conn. 205, 206, 75 A.2d 505; Ma......
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Gaulton v. Reno Paint and Wallpaper Co.
...parties cannot agree, the court itself may prepare and submit such interrogatories as it determines to be appropriate. Barber v. Baldwin, 135 Conn. 558, 67 A.2d 1 (1949). The plaintiffs contend, rather, that the procedure used by the court constituted a "sudden, unjustified, and unnecessary......