Busker v. United Illuminating Co.

• Decision Date: 10 May 1968
• Citation: 156 Conn. 456,242 A.2d 708
• Parties: Bernard BUSKER v. The UNITED ILLUMINATING COMPANY.
• Court: Connecticut Supreme Court

Page 708

242 A.2d 708

156 Conn. 456

Bernard BUSKER v. The UNITED ILLUMINATING COMPANY.

Supreme Court of Connecticut.

May 10, 1968.

John D. Fassett, New Haven, with whom were S. Robert Jelley, New Haven, and, on the brief, Frank E. Callahan, New Haven, for appellant (defendant).

Noel R. Newman, Bridgeport, with whom were Richard J. Joseph, Bridgeport, and, on the brief, Edgar W. Krentzman, Bridgeport, for appellee (plaintiff).

Before KING, C. J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

This is an action claiming damages for fraudulently depriving the plaintiff of an opportunity to earn a commission on the sale of real property. The defendant has appealed from the judgment on a verdict for the plaintiff, assigning as errors the court's denial of its motion to set aside the verdict as unsupported by the evidence and the court's refusal to give one request to charge.

(a)

If, on the evidence as presented and under the pleadings, the jury could reasonably have found in accordance with the verdict as rendered, it could not be set aside as being against the evidence. Lucier v. Meriden-Wallingford Sand & Stone Co., 153 Conn. 422, 427, 216 A.2d 818; Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812. The evidence must be given the most favorable construction, in support of the verdict, to which it is reasonably entitled. Lucier v. Meriden-Wallingford Sand & Stone Co., supra; Kerrigan v. Detroit Steel Corporation, 146 Conn. 658, 659, 154 A.2d 517. Except in the one respect hereinafter discussed in subdivision (b) of this opinion, the charge as given must be presumed to have been correct and adequate. Topps v. Marino, 149 Conn. 145, 149, 176 A.2d 569.

It must also be borne in mind that since this is a civil case the plaintiff would have sustained his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induced in the mind of the trier a reasonable belief that it was more probable than otherwise that the facts involved in that element were true. Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197.

Fraud, of course, is not to be presumed and must be strictly proven by clear, precise and unequivocal evidence. Creelman v. Rogowski, 152 Conn. 382, 384 207 A.2d 272. But the intent to defraud must usually, as was the case here, be proven by circumstantial evidence. See cases such as State v. Vars, 154 Conn. 255, 263, 224 A.2d 744.

There was evidence from which the jury might reasonably have found the following facts: The plaintiff, a licensed real estate broker, was seeking a purchaser for a certain property known as the Locomobile property on Main Street in Bridgeport under a general listing such that he (the plaintiff) would be entitled to receive from the seller a commission of 6 percent of the purchase price if the plaintiff effected a sale. ¹

The defendant is the owner of a plant for generating electricity which is located in Bridgeport on land adjoining the Locomobile property. The plaintiff, believing that he could interest the defendant in purchasing that property, called at the defendant's Bridgeport office seeking the person in charge of real estate. He was referred to Arthur D. McGovern, the defendant's real estate engineer, whose job consisted of buying, selling and managing the defendant's real estate. On August 14, 1962, the plaintiff informed McGovern by telephone that he had a property which the defendant might wish to buy, and the plaintiff, on McGovern's assurance that he would be protected as a broker, identified the property. During the course of this and subsequent telephone conversations, the plaintiff agreed to, and did, furnish McGovern with written information about the property; and the purchase price, as discussed by McGovern and the plaintiff, dropped from $850,000 to around $700,000. McGovern discussed the matter with Edward H. Walton, who was the defendant's vice-president responsible for real estate and McGovern's superior in the company. Walton then informed McGovern that the defendant for some time had desired to purchase the property but had decided to conceal its identity as a buyer in order to avoid being charged an excessive price. McGovern was told by Walton not to discuss the matter with an agent for the seller since the defendant preferred to act, in attempting to acquire the property, as an undisclosed principal. Thereafter, the plaintiff was unable to communicate with McGovern, who would not return his calls. In May, 1963, the plaintiff learned through a newspaper article that the defendant had purchased the Locomobile property. The purchase had been accomplished, at a price of $715,000, through the defendant's attorney and Oliver Knight, who had been employed by the attorney to assist in the purchase of the property. Knight did not know the identity of his undisclosed principal. The property was first conveyed by the seller to William P. Gumpper, another attorney employed on behalf of the defendant, in his own name as trustee for an undisclosed principal, and he afterward transferred it to the defendant. It does not appear that Gumpper knew of the plaintiff's prior connection with the defendant's purchase of the property. Until the final transfer to the defendant, the seller did not know that the defendant was the actual buyer although he did know that the buyer was an undisclosed principal.

From these facts the jury could have inferred that the plaintiff had obtained a substantial price concession from the owner and could have concluded that the plaintiff was the 'effectual procuring cause', or, as our more recent cases phrase it, the 'predominating producing cause', of the sale and that, but for the conduct of the defendant, he would have been entitled to a broker's commission from the seller, under the rule of cases such as Benrus Watch Co. v. Rosengarten, 138 Conn. 393, 396, 85 A.2d 487, and Marshall v. Sturgess & Jockmus, Inc., 150 Conn. 59, 62, 185 A.2d 472.

The complaint, in material part, alleges that the defendant, by its fraudulent conduct in connection with its purchase of the property directly from the owner, 'deprived the plaintiff of an opportunity to earn a commission for the sale of said property and * * * deprived him of the commission which he would (otherwise) have justly earned'.

It is obvious that the cause of action alleged and relied upon is a tortious (in this case fraudulent) interference with a business expectancy, under the rule of cases such as Skene v. Carayanis, 103 Conn. 708, 715, 131 A. 497, and Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355. See also Wyeman v. Deady, 79 Conn. 414, 417, 65 A. 129; notes, 97 A.L.R. 1273, 146 A.L.R. 1417; 12 Am.Jur.2d, Brokers, § 164.

The essential elements of the plaintiff's cause of action are: (1) the defendant's conduct was tortious in that it was fraudulent; and (2), as a proximate consequence of that fraudulent conduct, the plaintiff suffered actual loss, as alleged, in being deprived of an opportunity which he would otherwise have had to earn his commission from the seller. Skene v. Carayanis, supra; Goldman v. Feinberg, supra.

The jury could also have found that the defendant knew, as far back as August, 1962, that the plaintiff was attempting to sell the property as a broker for the owner and the McGovern had told the plaintiff that he would be protected as a broker and thereby had induced the plaintiff to disclose the identity of the property to be sold and certain detailed information about it. The jury could also have considered that certain language in the bond for a deed to Gumpper was significant. This was a provision that the parties (the seller and Gumpper) represented 'that they have dealt with no other agent in this sale to William P. Gumpper, as Trustee than * * * Oliver Knight, whose commission as broker will be paid by the Purchaser, and the purchaser has not disclosed his principal to the seller'. It appears that, as far as the seller and Gumpper knew, the quoted language was correct.

Thus, the jury could have found that the seller lacked knowledge, at the vital time of the sale to Gumpper, that he was actually selling to the same buyer as the plaintiff had told him about in 1962 in persuading him to lower his asking price, but that the defendant, on the other hand, knew that it was the actual buyer and also knew that it was the one with which the seller, through the plaintiff as his agent, had negotiated in August of 1962. The jury could also have found from the evidence, including the quoted language from the bond for a...