Cohen v. Holloways', Inc.

• Decision Date: 22 July 1969
• Court: Connecticut Supreme Court
• Parties: Sidney COHEN v. HOLLOWAYS', INC.

Page 573

260 A.2d 573

158 Conn. 395

Sidney COHEN v. HOLLOWAYS', INC.

Supreme Court of Connecticut.

July 22, 1969.

John P. Harbison, Hartford, for appellant (defendant).

Joseph Asbel, Hartford, with whom was William Pease, Simsbury, for appellee (plaintiff).

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

RYAN, Associate Justice.

The instant case, wherein the plaintiff seeks the release of a right of way over his land together with damages, was returnable to the Superior Court in May, 1963. A second case, Cohen v. Roddy, No. 140759, was returnable to the Superior Court in Hartford County in January, 1965. In the latter case, Carroll E. Holloway was cited in as an additional party defendant in February, 1965. Although the cases were separate, they were so related that counsel agreed to try them together and further agreed that the evidence introduced would be applicable to both cases. Upon the finding and report of the referee, the trial court rendered judgment for the plaintiff in both cases. The only appeal taken was by the corporate defendant in the instant case.

The defendant in its assignments of error, has attempted, in effect, to redraft the report of the referee. This court has consistently discountenanced such a wholesale attack upon the finding. State v. Dukes, 157 Conn. 498, 499, 225 A.2d 614; Morrone v. Jose, 153 Conn. 275, 276, 216 A.2d 196; Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430. In assigning error in the findings contained in the referee's report, the defendant has failed in many instances to designate the particular paragraphs of the finding in which the referee allegedly found material facts without evidence, as required by our rules. Practice Book § 622. We have, however, reviewed the attacks made on the finding which either were stated in or can be inferred from the assignments of error.

The defendant seeks to have added to the finding a number of paragraphs on the ground that the facts stated in them were admitted or undisputed. To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. Martin v. Kavanewsky, 157 Conn. 514, 515, 225 A.2d 619; State v. Dukes, supra, 500. That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. Practice Book § 628(a). The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534.

Subject to the corrections to which the defendant is entitled and the amplifications necessary for a clear presentation of the complex factual situation, the referee found the following facts in his report, as corrected: In the early 1950's, James W. Roddy and Carroll E. Holloway participated in the development of what is now known as the College Highway Shopping Center in the town of Simsbury. This center is on the easterly side of what is now known as Hopmeadow Street. The street was some fifteen feet or more above the surrounding ground. Fill was brought in so that the parking lot in front of the stores was level with the highway. Stores were built at the southerly end, and, as tenants were found, new stores were constructed. The direction of expansion was from south to north. To get to the rear of the stores, it was necessary to construct a ramp-type driveway, or roadway, along the northerly side of the stores. No less than three such roadways were built from 1953 to 1961. The roadways were moved northerly as the shopping center expanded. To satisfy mortgage requirements, on February 27, 1953, the then owners of the shopping center, Roddy, Holloway, William A. Tierney and Axel E. Westerberg, entered into a fomral right-of-way agreement. By the terms of this agreement, a mutual driveway was created which ran easterly from Hopmeadow Street to the rear of the shopping center on the southerly boundary of the southernmost parcel of land, owned by Westerber, then northerly to the northerly boundary of the northernmost parcel of land in the center, owned by Roddy, then westerly along this boundary to Hopmeadow Street.

Prior to March 23, 1956, Carroll E. Holloway caused a corporation to be formed known as Holloways', Inc., the defendant in this case, and he transferred all properties owned by him in the shopping center to the corporation. This was a family corporation of which Carroll E. Holloway was president. Holloway, his wife and their two sons are the only stockholders. At all times from the date of incorporation of the defendant, Holloway has been the president of the defendant corporation, has been the agent for service of process upon the corporation and has had general power and authority to act for the defendant. Shortly after this transfer, Tierney conveyed his parcel in the shopping center to the defendant. Prior to March 23, 1956, Holloway and Roddy orally formed a partnership known as the Roddy and Holloway Development Company.

Prior to March 23, 1956, Roddy entered into negotiations with Thomas E. Hunt for the purchase of additional land at the north end of the shopping center. These negotiations were conducted in behalf of the partnership and for the protection of its interests in the shopping center. At one meeting, Roddy, Hunt, Holloway, an attorney and a surveyor met on the site, and, as a result of this meeting, a map was prepared by Harold R. Sanderson, dated February 22, 1956, and filed for record in the town clerk's office on March 29, 1956. A portion of this map is reproduced here.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Roddy and Holloway made arrangements with the Simsbury Bank and Trust Company to finance the purchase of this property from Hunt. Because of the fact that Hunt and Holloway were not on friendly terms, Roddy performed all the negotiations for the partnership. On March 23, 1956, Hunt conveyed parcel C on the map to Roddy. Roddy then conveyed a one-half interest in the parcel to Holloway. On the same date, by separate deed, Hunt conveyed parcel B to Roddy. Roddy then executed an agreement with Hunt which provided that roddy would construct a roadway similar to the one then existing. On the map, at the southerly boundary of parcel B, the existing roadway was designated 'Portion of 12 R.O.W. To Be Released.' The new roadway was to be constructed within a twenty-foot strip of land over the southerly portion of the property (parcel C) conveyed to Roddy by Hunt. When the new roadway was constructed, Hunt was to execute a release of his interest in the old twelve-foot roadway over parcel B. All this was to be done within a period of five years. All of the above-mentioned documents were executed on March 23, 1956, and were drafted by an attorney who represented all of the parties.

All the lgeal documents executed on March 23, 1956, referred to the map dated February 22, 1956, which map was filed in the town clerk's office of Simsbury. ¹ It should be noted at this point that these references to the map have the effect of incorporating the map into the deeds referring to it. General Statutes § 7-31; Barri v. Schwarz Bros. Co., 93 Conn. 501, 508, 107 A. 3. This map showed that Hunt still retained title to a piece of land in the northeast corner of the shopping center designated 'Thomas Hunt.' The new twenty-foot right of way over parcels B and C was clearly indicated. It also showed the twelve-foot right of way. It further showed that 150 feet of the twelve-foot right of way running easterly from Hopmeadow Street was to be released. The portion of the twelve-foot right of way to be released runs through parcel B. Hunt, Roddy and Holloway all received blueprint copies of this map. Holloway, in fact, gave such a blueprint copy to Attorney William Pease.

The partnership of Roddy and Holloway Development Company was involved in other projects not involved in this case. It was in some financial difficulty, and Roddy, in order to prevent liens from being placed on the partnership property, sold to the plaintiff and others, known as K.S.B. Associates, a parcel of land which included parcel B and also a small portion of parcel A. The proceeds of the sale were used to pay partnership debts. Holloway was informed of what was taking place. Later, on February 20, 1959, there was an exchange of deeds between the plaintiff and his associates and Roddy, whereby the plaintiff and his associates received a parcel of land slightly larger than before. To remove any ambiguity created by his reserving an indefinite right of way over the portion of parcel B which he had conveyed to Roddy, Hunt, on February 20, executed a release of the right of way covering the southerly thirty-five feet of the property. Before Roddy reconveyed to the plaintiff and his associates, he granted a right of way to Hunt over that portion of the twleve-foot right of way running from the highway to the railroad. Roddy, at this time, also conveyed the remaining portion of parcel A to others.

On May 19, 1959, Roddy and Holloway conveyed their interest in parcel C to the defendant. On June 15, 1959, Hunt also conveyed his interest in the porperty designated 'Thomas Hunt' to the defendant. To finance these purchases, the defendant executed a mortgage deed to the Society for Savings. All these deeds referred to the aforementioned map for descriptions of the properties conveyed. As part of the consideration for the transfer of parcel C from Roddy and Holloway to the defendant, Holloway, acting as president of the defendant, orally agreed to assume all obligations of the partnership as far as parcel C was concerned. Holloway had full authority to act for the defendant in these negotiations.

Shortly after the defendant corporation acquired title to the above parcels, Holloway and the defendant caused to be installed catch...