Abbott v. Lee

• Decision Date: 19 December 1912
• Citation: 86 Conn. 392,85 A. 526
• Parties: ABBOTT v. LEE.
• Court: Connecticut Supreme Court

85 A. 526

86 Conn. 392

ABBOTT

v. LEE.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Superior Court, Fairfield County; Lucien F. Burpee, Judge.

Action by G. Harry Abbott against Joseph P. Lee. Prom judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint alleges that on or about the 23d of December, 1909, the defendant employed the plaintiff to procure a purchaser for a certain tract of land consisting of 37 acres, more or less, with the buildings thereon standing, situated on Sasco Hill, in Fairfield, and promised to pay him therefor $1,050; that the plaintiff procured such purchaser ready and willing to buy upon the terms prescribed by the defendant; and that the defendant has refused to pay the plaintiff said sum.

The trial court has found these facts:

Prior to 1909 the plaintiff, a real estate broker, was informed by one Poillon that he would like to buy some property on the shore of Long Island Sound, in the vicinity of Stamford. Having learned that the defendant and his three sisters were the owners of such property, and desired to sell the same, the plaintiff visited said premises, in company with Mr. Poillon's wife and daughter, and they were shown over the property by one of the defendant's sisters; the defendant himself not being at home. On the same evening the defendant informed the plaintiff that he and his sisters would sell the property for $35,000, and authorized the plaintiff to sell it at that price, and promised to pay him therefor a commission of 5 per cent. Two or three days later the plaintiff visited the property with Poillon and others, and met the defendant, and the defendant pointed out to them certain objects indicating approximately the limits of the shore front, and in response to a question by Poillon stated that the length of the shore line was between 1,400 and 1,500 feet, and two days later Mr. Poillon told the plaintiff that he would accept the defendant's terms and buy the property, and that he might close the bargain with the defendant accordingly.

The finding of facts states that "at this time Mr. Poillon was ready, willing, and able to buy the defendant's property upon the terms fixed by the defendant, and had the means at his command for that purpose." and that he so notified the defendant but that "the defendant then refused to sell the property upon said terms, stating that his sisters were unwilling to sell the dwelling house and the home lot containing about one acre." A short time afterwards the defendant told the plaintiff to tell Poillon that he would allow a reduction of $2,000 from the original price of $35,000, and retain the dwelling house and home lot, and this proposition was presented by plaintiff to Poillon, and accepted by the latter, and the plaintiff at once informed the defendant of such acceptance, and it was then agreed between the plaintiff and the defendant that the former should receive $1,500 for selling the property for said price, and the defendant agreed to pay the same. On the 23d of December, 1900, the plaintiff wrote, and the defendant and his sisters signed, Plaintiff's Exhibit A, which reads as follows: "Received from G. Harry Abbott, agent, the sum of fifty ($50.00) dollars, to bind agreement to sell to J. E. Poillon all that certain tract or tracts of lands, located on Sasco Hill (so called), in the town of Fairfield, county of Fairfield, state of Connecticut, comprising thirty-seven (37) acres more or less, as described in deeds as follows: Eliza M. Jennings to Patrick Lee, dated April 5, 1888, recorded Vol. 65, page 411; Ebenezer Burr and wife, recorded July 18th, 1893, Vol. 67, page 594; Charles Jennings, Adm., to Patrick Lee, recorded November 1st, 1898, Vol. 69, page 95; except for house standing thereupon, and one (1) acre of ground. It is understood that the purchase price is thirty-three thousand ($33,000) dollars, payable ($2,500.00) on signing of contract. Ten thousand, five hundred dollars and a mortgage for $20,000.00 at 5 per cent. per annum upon delivery of deed on April 1st 1910." The plaintiff showed this paper to Poillon, who then gave the plaintiff $500 in part payment of the purchase price required by the terms of said writing, "and to make the contract binding," which sum is still kept by the plaintiff, except that he gave his own check to the defendant for $50 as above indicated. In January, 1910, Mr. Poillon prepared a written contract (Plaintiff's Exhibit E) which provided that the defendant agreed to sell to Poillon, and the latter agreed to purchase, for $33,000 the premises described as containing thirty-seven acres, more or less, with the buildings thereon, excepting one acre of land with the buildings thereon, and further described by the boundaries, supposed to be in accordance with those described in the three deeds referred to in Exhibit A, the southwesterly boundary being described in said Exhibit E as "the waters of Long Island Sound at high-water mark," and the westerly by "Mill river so called." Added to such description in Exhibit E was the following language, not contained in the deeds referred to in Exhibit A: "Together with all shore and riparian rights in said Sound and river. It being expressly agreed and warranted that the shore line on said Long Island Sound shall not be less than fourteen hundred and fifty (1,450) feet in length. * * *" No length of the shore line, by number of feet, was given in the deeds referred to in Exhibit A. The defendant refused to sign Exhibit E. No contract, other than Exhibit A, embodying any change in the language of Exhibit E, was ever submitted to Mr. Poillon, and no sale of the property to Poillon was made.

The finding of facts contains these paragraphs:

"(30) The defendant did not offer or make any attempt in any way to carry out the agreement for the sale of his property made by him on December 23, 1909.

"(31) Mr. Poillon was ready, willing, and able at all times to fulfill his part of the agreement Exhibit A, and on several occasions between December 23, 1909, and April 1, 1910, he made efforts to communicate with the defendant and to induce him to make the contract for sale and execute the deed mentioned in Exhibit A, and complete the transfer of the property, but without success.

"(32) The defendant refused and neglected to make any contract for sale of the property and to make any conveyance thereof to Mr. Poillon, and it was his fault that the sale was not consummated."

"(34) It did not appear how long the shore line or shore front of this property is, and no evidence was offered to show that the description of the land contained in Exhibit E is not a correct description of the land referred to in Exhibit A."

Upon the facts found the trial court rendered judgment for the plaintiff for $1,713.25. The defendant excepted to the finding as made in paragraphs 30, 31, 32, and 34, and also as made in other paragraphs of the finding, and asked for a correction thereof. The evidence respecting the facts so found is certified to this court.

Robert E. De Forest and Thomas M. Cullinan, both of Bridgeport, for appellant.

Robert H. Fosdick, of Stamford, for appellee.

HALL, C. J. (after stating the facts as above). To entitle the plaintiff to recover, he was required to prove the averment of his complaint that he procured a "purchaser ready and willing to buy upon the terms prescribed by the defendant." To do this in the present case he was required to prove that Poillon was ready and willing to accept a conveyance of the property, and to pay the agreed price for it, in accordance with the terms fixed by ...