Busker v. United Illuminating Co.

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

Page 708

242 A.2d 708 156 Conn. 456 Bernard BUSKER
v.
The UNITED ILLUMINATING COMPANY. Supreme Court of Connecticut. May 10, 1968.

[156 Conn. 457]

Page 709

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 [156 Conn. 456] KING, C. J., and ALCORN, HOUSE, THIM and RYAN, JJ.

[156 Conn. 457] KING, Chief Justice.

This is an action claiming damages for fraudulently depriving the plaintiff of an opportunity[156 Conn. 458] 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 [156 Conn. 459] evidence. Creelman v. Rogowski, 152 Conn. 382, 384,

Page 710

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 [156 Conn. 460] 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...