Cohen v. Meola
| Decision Date | 12 May 1981 |
| Citation | 184 Conn. 218,439 A.2d 966 |
| Court | Connecticut Supreme Court |
| Parties | Leonard G. COHEN et al. v. Matthew MEOLA et al. |
Thomas F. McDermott, Jr., Litchfield, for appellants-appellees (defendants).
Thomas A. Rouse and Robert B. Fawber, Hartford, for appellees-appellants (plaintiffs).
Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.
This is an action to enforce a right of first refusal contained in a three-month lease. The plaintiffs, Leonard G. Cohen and Joan Cohen, sued the defendants, Matthew Meola and Josephine Ann Meola, seeking both specific performance and damages. From a judgment ordering specific performance and awarding the plaintiffs damages, the defendants have appealed. The plaintiffs have cross appealed with regard to other items of damages to which they claim to be entitled.
The underlying facts found by the trial court are not in dispute. On May 20, 1978, the defendants leased to the plaintiffs their lakefront house and property in New Milford for the period from June 2, 1978, through September 10, 1978. The lease contained the following clause, "Tentants (sic) to have first right of refusal before the house is sold to anyone else." During the term of the lease, on July 14, 1978, the defendants entered into a written contract to sell the property to Laurens and Shirley Waymouth for $75,000. The Waymouth contract specifically acknowledged that it was subject to the plaintiffs' right of first refusal. The plaintiffs were informed of the Waymouth contract but were told that if they intended to purchase the property the price would have to include an additional amount for a brokerage commission to the realtor who had negotiated their lease. The plaintiffs insisted on their right to a contract containing, except for some express waivers, precisely the same conditions as those contained in the Waymouth contract. The defendants refused and this litigation ensued.
On their appeal, the defendants raise five claims of error. Three of these relate to the sufficiency of the evidence before the trial court, and will be treated jointly below. Before we reach these questions, two others merit a brief response.
The defendants' first claim of error asks us to review the action of the trial court, Covello, J., in denying the defendants' motion to strike the plaintiffs' complaint on the ground that the claims were barred by the rule against perpetuities and the statute of frauds. The issues raised in the motion to strike were reargued, and evidence relating thereto was heard, when the case came on the merits before the trial court, Borden, J. Having heard the case in full, the court again ruled against the defendants. On this record it would serve no useful purpose for us to review separately the denial of the motion to strike without regard to the evidence presented at the trial. In other claims of error, the defendants have adequately preserved their right to review of the underlying questions. The denial of the motion to strike has, in effect, become moot. See Hartwell v. Watertown, 123 Conn. 657, 659-60, 197 A. 755 (1938); Mechanics' Bank v. Woodward, 74 Conn. 689, 691, 51 A. 1084 (1902).
The defendants also claim error in the trial court's admission into evidence of an exhibit written by Janet Bodah, who was an employee of the real estate agency that had negotiated the lease between the parties. The defendants' argument that this exhibit was improperly admitted is premised upon their assertion the Janet Bodah was acting outside the scope of her authority as the defendants' agent. Whether a person is an agent and whether as agent, she is acting within the scope of her authority, are questions of fact. Botticello v. Stefanovicz, 177 Conn. 22, 26, 27, 411 A.2d 16 (1979); Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, 125, 374 A.2d 144 (1976); Cleaveland v. Gabriel, 149 Conn. 388, 394-95, ...
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...as not to violate the rule, Estate of Johnson v. Carr, supra; Smerchek v. Hamilton, supra; Smith v. VanVoorhis, supra; Cohen v. Meola, 184 Conn. 218, 439 A.2d 966 (1981); Clark v. Shelton, 584 P.2d 875 (Utah 1978); extrinsic evidence was permitted to show the intent that the right would not......
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