Burns v. Garey

• Decision Date: 28 July 1924
• Court: Connecticut Supreme Court
• Parties: BURNS ET AL. v. GAREY ET UX.

125 A. 467

101 Conn. 323

BURNS ET AL. v. GAREY ET UX.

Supreme Court of Errors of Connecticut.

July 28, 1924

Appeal from Superior Court, Litchfield County; Isaac Wolfe, Judge.

Action by Edward J. Burns and others against Tracy Garey and wife who interposed a cross-bill and counterclaim. Judgment for defendants, and plaintiffs appeal. No error.

Action in the nature of ejectment, demanding possession of the described premises and damages, with cross-complaint and counterclaim by defendants asking specific performance of an agreement to convey the premises, brought to and tried by the superior court in Litchfield county, Wolfe, J., facts found and judgment rendered for the defendants on the cross-bill and counterclaim, and the plaintiffs appealed. No error.

Frank B. Munn, of Winsted, and Howard F. Landon, of Salisbury, for appellants.

Samuel A. Herman, of Winsted, for appellees.

ELLS J.

The plaintiffs, on August 30, 1919, agreed to sell certain land upon which was an uncompleted dwelling house, to the defendant Tracy Garey, for $5,500, and gave a written memorandum acknowledging the receipt of $150 down stipulating that the deeds were to pass not later than October 15, 1919, and that a further sum of $850 was to be paid at the time of occupancy, and stating briefly certain details as to the manner in which the house was to be completed by the plaintiffs. There was some discussion as to specifications, and the plaintiff William A. Burns requested the defendant Marguerite Garey to write upon said paper the various details of the work yet to be done upon said house, and she then and there at his direction, wrote them down, below the signature to the agreement above referred to.

During the preceding month the defendants had moved their furniture from the town where they had formerly resided, to Torrington, and had stored it in a warehouse and then left Torrington, returning September 7th and going to board, preparatory to the beginning by the defendant Tracy Garey of his duties as a public school supervisor. On October 3d the defendants cut off and recorded the portion of the memorandum of agreement down to and including the signature, in the Torrington land records. The plaintiffs did not finish the house so that the deeds could pass not later than October 15th. On October 30th the defendant Marguerite Garey stated to one of the plaintiffs that the period for which their furniture had been stored and the term of the insurance thereon had expired and desired to know what she could do about the furniture. The plaintiff thereupon stated that Mrs. Garey's husband had purchased the place in question and that he (the plaintiff) could not see any reason why she should not move the things into the house. On the following day the defendants moved their furniture into the house, which was still in an uncompleted state, but did not themselves move in. The defendants, by permission of the plaintiffs, were and had been in possession of a key to the house.

On November 7th, the plaintiffs not having expedited the work on the house and the contractors not having for several days done any work thereon, the defendants caused their attorney to write a letter to the plaintiffs, requesting that the work proceed, and stating that, unless the plaintiffs put men onto the job again before November 10th and complete it without delay, he would advise the defendants to complete the work and charge it to the plaintiffs. On or about November 11th, the contractor came to the house for the purpose of placing the front door in place. The plaintiffs had allowed Mrs. Garey to select a lock, and she handed it to the contractor, together with the keys, except one which she retained. The contractor thereupon replied that he had been instructed to secure all the keys, and upon her refusal to give up the one she had retained he left the premises and never returned thereto or did any further work thereon. The defendants on several occasions thereafter requested the plaintiffs to proceed with the work, but the plaintiffs took no steps in the matter. On November 2d the plaintiffs caused their counsel to write to the defendants' counsel to the effect that they expected to complete the house in accordance with the contract " if your client does not interfere," stating that the placing of the furniture in the house had hindered the work and ordering its removal, and forbidding defendants to employ any men to do anything on the premises upon peril of expulsion, and stating that when the furniture had been removed the work would go on expeditiously. The letter closed with a paragraph stafing that, as the minds of the parties do not seem to have met, and as the defendants have made no attempt to carry out the agreement, the plaintiffs are ready to return the money and give a receipt in full for all trouble and expense made to the plaintiffs. Between November 11th and November 22d, one of the plaintiffs stated to Marguerite Garey that they had received a higher offer and therefore did not intend to convey the premises to the defendants.

The defendants did not remove the furniture, made further requests that the plaintiffs complete the house, tendered the sum of $850 described in the memorandum of agreement, and then proceeded to finish the work at a reasonable cost of $2,570.09. Some time after November 11th, the exact date not being fixed, the defendants moved into the house to reside therein and have since continued to live therein. The trial court found that there was delivery of possession; that the defendants were justified in completing the house; that in so doing they believed in good faith that they had absolute title to the land; that the plaintiffs, in permitting the defendants to go forward and complete the house without taking any steps to prevent it, and standing idly by while such expenditures were being made, were estopped from claiming that the expenditures were unauthorized; that said expenditures were reasonable and necessary, and that the house was completed in substantial compliance with the agreement; and therefore that the premises should be conveyed to the defendant Tracy Garey, upon payment of the balance of the agreed price.

The equities of the matter are strongly with the defendants. They kept their agreement. The plaintiffs did not. The written memorandum sufficiently complies with the statute of frauds to enable the court to decree specific performance, if the facts so warrant. The defendants' conduct was equitable throughout.

The mere statement of the facts answers the plaintiffs' claim that they can retain the premises and the improvements made thereon upon a mere technical showing that they have strict legal title and are kept out of possession. The real issue is whether the agreement of August 30, 1919, is enforceable, and whether the facts of the case warrant its specific performance.

It was conceded by the plaintiffs' attorney during the trial of the case that the agreement between the parties sufficiently complied with the statute of frauds to enable the court to decree specific performance. In this we think he was correct. Hodges v. Kowing, 58 Conn. 12, 18 A. 979, 7 L.R.A 87. One of the reasons of appeal, however, seems to raise this question. We think that, even if it had been exclusively an oral agreement, the finding shows such a part performance of an oral agreement for the purchase and sale of the premises as will in equity take the case out of the...