Breen v. Phelps

• Citation: 439 A.2d 1066,186 Conn. 86
• Court: Supreme Court of Connecticut
• Decision Date: 26 January 1982
• Parties: William BREEN v. William PHELPS, Administrator. (ESTATE OF Anna PHELPS).

Page 1066

439 A.2d 1066

186 Conn. 86

William BREEN v. William PHELPS, Administrator (ESTATE OF Anna PHELPS).

Supreme Court of Connecticut.

Argued Oct. 16, 1981.

Decided Jan. 26, 1982.

John L. Gerardo, Torrington, with whom, on the brief, were John M. Massameno, Wallingford, and William T. Barrante, Winsted, for appellant (plaintiff).

William C. Franklin, Litchfield, for appellees (defendants).

Before SPEZIALE, C. J., and PETERS, PARSKEY, ARMENTANO and SHEA, JJ.

SHEA, Associate Justice.

This appeal raises procedural issues regarding appellate review of a ruling striking a single count of a complaint and also substantive issues relating to the statute of frauds and the nonclaim statute.

The complaint alleged in the first count a claim for specific performance of an agreement for the sale to the plaintiff of certain real estate in Litchfield owned by Anna Phelps, deceased, for whose estate the defendant ¹ is acting as administrator. The second count sought damages against the estate upon the ground of unjust enrichment or constructive trust by virtue of payments made by the plaintiff to the decedent upon the agreed price for the real estate, amounts he paid for property taxes, and the value of labor and materials he furnished in repairing and renovating the property.

A motion to strike the first count of the complaint was granted, N. O'Neill, J., upon the ground that the writing memorializing the agreement failed to comply with the statute of frauds; General Statutes § 52-550; and that the acts of part performance alleged were insufficient as a matter of law to overcome this bar to the action. The motion was also addressed to the second count and there relied upon the failure to allege a timely presentation of the claim to the defendant administrator as required by the nonclaim statute, General Statutes § 45-205. This motion was denied because the court concluded that the unjust enrichment claim alleged was "contingent and at the moment still a mere possibility" and, therefore, not subject to the nonclaim statute. ² The defendant then filed an answer and the plaintiff's reply to the special defenses raised therein closed the pleadings. The defendant moved for summary judgment upon the second count, relying upon the failure of the plaintiff to present his claim in writing within the period allowed by the nonclaim statute. The court, Pickett, J., concluded that the plaintiff's claim in the second count was essentially for damages rather than for the return of specific property, and, therefore, presentation in writing was required by the statute. The facts set forth in an affidavit of the defendant concerning the failure to present the claim within the period established by the Probate Court were not disputed. The court rendered summary judgment for the defendant upon the second count, and the plaintiff has appealed from that judgment and also from the action of the court in striking the first count of the complaint.

The defendant claims that we have no jurisdiction to consider the plaintiff's claim of error in respect to striking the first count of the complaint because the granting of the motion to strike that count is not a final judgment. The change in nomenclature from "demurrer" to "motion to strike" effectuated by the 1978 revision of the rules of practice has not modified the right of a party to replead his cause or defense after his original pleading has been stricken. Practice Book § 157 (as amended). ³ The ruling upon the motion, therefore, does not qualify as a final judgment because it neither terminated a separate and distinct proceeding nor concluded the rights of the parties so that further proceedings could not affect them. E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975). It has been expressly held that the sustaining of a demurrer is not a final judgment. Costecski v. Skarulis, 103 Conn. 762, 131 A. 398 (1925).

A plaintiff, however, may elect to stand upon a complaint which has been stricken as deficient by refusing to plead further. Vincent v. McNamara, 70 Conn. 332, 340, 39 A. 444 (1898); O'Donnell v. Sargent & Co., 69 Conn. 476, 483, 38 A. 216 (1897). Practice Book § 157 (as amended) expressly provides for the entry of judgment upon motion "where an entire complaint, counterclaim or cross complaint has been stricken." The rule does not apply in this case, however, where only one count of the complaint was stricken. ⁴ The apparent purpose of limiting judgments under the rule to the striking of an entire complaint is to discourage piecemeal litigation ⁵ by deferring any appeal from a ruling upon a single count of a complaint until all of the plaintiff's claims against the defendant have finally been decided. Its adoption in 1978 changed our former practice which permitted such an appeal. See Chapin v. Chapin, 155 Conn. 691, 692, 229 A.2d 548 (1967); Enfield v. Hamilton, 110 Conn. 319, 322, 148 A. 353 (1930). The striking of a particular count may be reviewed in an appeal from the final judgment if the ruling has resulted in some aggrievement. Practice Book § 3000. ⁶ The situation is analogous to that of a defendant who cannot appeal from the denial of his motion to strike a complaint or from the granting of a motion to strike his special defense, but may have these rulings reviewed upon his appeal from the final decision on the merits of the case. Nowak v. Nowak, 175 Conn. 112, 117-22, 394 A.2d 716 (1978); Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967); Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961). We conclude, therefore, that we may review the ruling of the trial court striking the first count of the complaint in this appeal from the final judgment. ⁷

I

The agreement which was the subject of the first count of the complaint was set forth on the reverse side of a bank money order in the sum of $100 dated August 27, 1970, drawn by the plaintiff and payable to the decedent, Anna Phelps. Above her signature endorsing the money order the following words appear: "This sum as a deposit on the Henry Phelps or Mrs. Anna Phelps property at agreed price of $5,000.00 (Five Thousand Dollars) by the parties being Anna Phelps and William R. Breen." ⁸ The trial court concluded that this writing did not meet the requirements of our statute of frauds; General Statutes § 52-550; ⁹ which provides that "(n)o civil action shall be maintained ... upon any agreement for the sale of real estate ... unless such agreement, or some memorandum thereof, is made in writing and signed by the party to be charged therewith...." To comply with the statute of frauds "an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof, or from a reference contained therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement." Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961). The trial court in granting the motion to strike found that the writing on the check was insufficient to satisfy the statute in two respects: (1) the failure to specify any time for performance; and (2) the ambiguity of the reference to "the Henry Phelps or Mrs. Anna Phelps property."

We shall consider only whether the terms of the sale have been sufficiently stated in the endorsement signed by the decedent to comply with the statute because this question is dispositive. The mere absence of a time for performance in a contract of sale does not ordinarily make it unenforceable, because the law will imply a reasonable time for performance if none has been specified. Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960); Texas Co. v. Crown Petroleum Corporation, 137 Conn. 217, 227, 75 A.2d 499 (1950). The complaint alleges, however, that from the date of the agreement, August 27, 1970, until the death of Anna Phelps on February 3, 1976, the plaintiff paid $3100 upon the agreed price of $5000, leaving a balance of $1900. It alleges further that the property tax payments, repairs and renovations made by the plaintiff were to be credited upon the purchase price. Under the circumstances alleged, a reasonable time for performance of the contract of sale on the part of the plaintiff could never be deemed to extend beyond a period of nearly six years in the absence of some additional agreement with the decedent not contained in the writing relied upon. Similarly, if the payments of taxes and the value of repairs and renovations were to be applied to the purchase price of the property, some other arrangement with the decedent must have been made orally modifying the original writing, which must be presumed to call for payment in cash in the absence of a statement of other terms. Santoro v. Mack, 108 Conn. 683, 689, 145 A. 273 (1929). The proof of such additional agreements with the decedent is, of course, prohibited by the statute of frauds, which requires all of the essential terms of a contract for the sale of realty to be in writing. We conclude that the trial court was correct in ruling that the writing pleaded by the plaintiff did not sufficiently set forth the terms of the agreement with the decedent to comply with the statute.

The first count of the complaint also alleged that the payment of $3100 on the purchase price, the payment of the property taxes, and the furnishing of labor and materials in the repairs and renovation of the premises "to the extent of $6,300.00" were actions in pursuance of the contract of sale. "In those cases where one party, in reliance upon the contract, has partly performed it to such an extent that a repudiation of the contract by the other party would amount to the perpetration of a fraud, equity looks upon the contract as removed from the operation of the...