Botticello v. Stefanovicz

• Decision Date: 06 March 1979
• Citation: 177 Conn. 22,411 A.2d 16
• Court: Connecticut Supreme Court
• Parties: Anthony BOTTICELLO v. Walter STEFANOVICZ et al.

Page 16

411 A.2d 16

177 Conn. 22

Anthony BOTTICELLO v. Walter STEFANOVICZ et al.

Supreme Court of Connecticut.

Argued Dec. 15, 1978.

Decided March 6, 1979.

Paul B. Groobert, Manchester, for appellants (defendants).

Edmund W. O'Brien, New London, with whom was Laurence P. Rubinow, Manchester, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

PETERS, Associate Justice.

This case concerns the enforceability of an agreement for the sale of real property when that agreement has been executed by a person owning only an undivided half interest in the property. The plaintiff brought an action for specific performance against the defendants to compel conveyance of their land in accordance with the terms of a lease and option-to-purchase agreement signed by one of the defendants. The defendants interposed numerous defenses, including a motion for summary judgment based upon the Statute of Frauds. This motion was denied and, after a full trial before the court, all the remaining issues were found for the plaintiff against both defendants. The defendants are now appealing from the consequent entry of a judgment ordering them to convey the real property in question to the plaintiff by warranty deed in consideration for the payment of $74,700.

The finding of the trial court discloses the following undisputed facts: The defendants, Mary and Walter Stefanovicz (hereinafter "Mary" and "Walter") in 1943 acquired as tenants in common a farm situated in the towns of Colchester and Lebanon. In the fall of 1965, the plaintiff, Anthony Botticello, became interested in the property. When he first visited the farm, Walter advised him that the asking price was $100,000. The following January, the plaintiff again visited the farm and made a counteroffer of $75,000. At that time, Mary stated that there was "no way" she could sell it for that amount. Ultimately the plaintiff and Walter agreed upon a price of $85,000 for a lease with an option to purchase; during these negotiations, Mary stated that she would not sell the property for less than that amount.

The informal agreement was finalized with the assistance of counsel for both Walter and the plaintiff. The agreement was drawn up by Walter's attorney after consultation with Walter and the plaintiff; it was then sent to, and modified by, the plaintiff's attorney. The agreement was signed by Walter and by the plaintiff. Neither the plaintiff nor his attorney, nor Walter's attorney, was then aware of the fact that Walter did not own the property outright. The plaintiff, although a successful businessman with considerable experience in real estate never requested his attorney to do a title search of any kind, and consequently no title search was done. Walter never represented to the plaintiff or the plaintiff's attorney, or to his own attorney, that he was acting for his wife, as her agent. Mary's part ownership came to light in 1968, when a third party sought an easement over the land in question.

Shortly after the execution of the lease and option-to-purchase agreement, the plaintiff took possession of the property. He made substantial improvements on the property and, in 1971, properly exercised his option to purchase. When the defendants refused to honor the option agreement, the plaintiff commenced the present action against both Mary and Walter, seeking specific performance, possession of the premises, and damages.

The trial court found the issues for the plaintiff and ordered specific performance of the option-to-purchase agreement. In their appeal, the defendants make essentially two claims: (1) that Mary was never a party to the agreement, and its terms may therefore not be enforced as to her; and (2) that the provisions of the purchase money mortgage contained in the option-to-purchase agreement were so ambiguous, indefinite, and uncertain that the option failed to satisfy the Statute of Frauds and was therefore unenforceable. These claims will be considered separately.

I

The plaintiff alleged, and the trial court agreed, that although Mary was not a party to the lease and option-to-purchase agreement, its terms were nonetheless binding upon her because Walter acted as her authorized agent in the negotiations, discussions, and execution of the written agreement. The defendants have attacked several findings of fact and conclusions of law, claiming that the underlying facts and applicable law do not support the court's conclusion of agency. ¹ We agree.

Agency is defined as " 'the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to this control, and consent by the other so to act. . . .' Restatement (Second), 1 Agency § 1." McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 322, 321 A.2d 456 (1973). Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking. Restatement (Second), Agency § 1, comment b (1958). ²

The existence of an agency relationship is a question of fact. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, 374 A.2d 144 (1976); Cleaveland v. Gabriel, 149 Conn. 388, 394, 180 A.2d 749 (1962). The burden of proving agency is on the plaintiff; Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936); and it must be proven by a fair preponderance of the evidence. Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970); Iodice v. Rusnak, 143 Conn. 244, 247, 121 A.2d 275 (1956). Marital status cannot in and of itself prove the agency relationship. Commission on Human Rights & Opportunities v. Veneri, 157 Conn. 20, 24, 244 A.2d 401 (1968); Iodice v. Rusnak, supra, 143 Conn. 247, 121 A.2d 275; Cyclone Fence Co. v. McAviney, supra, 121 Conn. 659, 186 A. 635. Nor does the fact that the defendants owned the land jointly make one the agent for the other. Commission on Human Rights & Opportunities v. Veneri, supra, 157 Conn. 24, 244 A.2d 401.

The facts set forth in the court's finding are wholly insufficient to support the court's conclusion that Walter acted as Mary's authorized agent in the discussions concerning the sale of their farm and in the execution of the written agreement. The court's conclusion must be tested by the finding and not by the evidence. Spicer v. Spicer, 173 Conn. 161, 163, 377 A.2d 259 (1977). The finding indicates that when the farm was purchased, and when the couple transferred property to their sons, Walter handled many of the business aspects, including making payments for taxes, insurance, and mortgage. The finding also discloses that Mary and Walter discussed the sale of the farm, and that Mary remarked that she would not sell it for $75,000, and would not sell it for less than $85,000. ³ A statement that one will not sell for Less than a certain amount is by no means the equivalent of an agreement to sell for that amount. See Restatement (Second), Contracts § 25, esp. illustration 4 (1973). Moreover, the fact that one spouse tends more to business matters than the other does not, absent other evidence of agreement or authorization, constitute the delegation of power as to an agent. What is most damaging to the plaintiff's case is the court's uncontradicted finding that, although Mary may have acquiesced in Walter's handling of many business matters, Walter Never signed any documents as agent for Mary prior to 1966. Mary had consistently signed any deed, mortgage, or mortgage note in connection with their jointly held property.

In light of the foregoing, it is clear that the facts found by the court fail to support its conclusion that Walter acted as Mary's authorized agent, and the conclusion therefore cannot stand. See White Oak Excavators, Inc. v. Board of Tax Review, 169 Conn. 253, 256, 363 A.2d 134 (1975); Barrett-Nonpareil, Inc. v. Stoll, 168 Conn. 79, 82, 357 A.2d 481 (1975).

The plaintiff argues, alternatively, that even if no agency relationship existed at the time the agreement was signed, Mary was bound by the contract executed by her husband because she ratified its terms by her subsequent conduct. The trial court accepted this alternative argument as well, concluding that Mary had ratified the agreement by receiving and accepting payments from the plaintiff, and by acquiescing in his substantial improvements to the farm. The underlying facts, however, do not support the conclusion of ratification.

Ratification is defined as "the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account." Restatement (Second), Agency § 82 (1958). Ratification requires "acceptance of the results of the act with an Intent to ratify, and with Full knowledge of all the material circumstances." Ansonia v. Cooper, 64 Conn. 536, 544, 30 A. 760, 762 (1894). (Emphasis added.) See Cohen v. Holloways', Inc., 158 Conn. 395, 411, 260 A.2d 573 (1969); Bond Rubber Corporation v. Oates Bros., Inc., 136 Conn. 248, 251, 70 A.2d 115 (1949).

The finding neither indicates an intent by Mary to ratify the agreement, nor establishes her knowledge of all the material circumstances surrounding the deal. At most, Mary observed the plaintiff occupying and improving the land, received rental payments from the plaintiff from time to time, knew that she had an interest in the property, and knew that the use, occupancy, and rentals were pursuant to a written agreement she had not signed. None of these facts is sufficient to support the conclusion that Mary ratified the agreement and thus bound herself to its terms. It is undisputed that Walter had the power to lease his own undivided one-half interest in the property; Commission on Human Rights & Opportunities v. Veneri, supra, 157 Conn. 24, ...