Colvin v. Delaney

• Court: Connecticut Supreme Court
• Writing for the Court: KELLER, J.
• Citation: Colvin v. Delaney, 101 Conn. 73, 124 A. 841 (Conn. 1924)
• Decision Date: 02 June 1924
• Parties: COLVIN ET UX. v. DELANEY.

124 A. 841

101 Conn. 73

COLVIN ET UX. v. DELANEY.

Supreme Court of Errors of Connecticut.

June 2, 1924

Appeal from City Court of Hartford; Henry J. Calnen, Special Judge.

Action by James T. Colvin and wife against Theresa J. Delaney. Judgment of nonsuit, and plaintiffs appeal from a denial of a motion to set the judgment aside. Error, and new trial ordered.

William H. Macdonald and Andrew J. Broughel, both of Hartford, for appellants.

Terry J. Chapin, of Hartford, for appellee.

KELLER, J.

The complaint in this action alleges in the first four paragraphs:

That the plaintiffs, husband and wife, by a written contract dated April 1, 1918 (an exhibit in the case), agreed with the defendant to purchase a house and lot on Ward street Hartford, and that, in accordance with the contract, defendant by warranty deed dated April 3 conveyed the same to plaintiffs. That one of the clauses in the contract read as follows.

" Mrs. Delaney [the defendant] agrees to vacate premises on or before April 15th, 1918, and agrees to leave house in good condition also to repair water pipes."

That on or about April 20, 1918, possession of the premises was given to the plaintiffs by defendant, who prior to that time had satisfactorily repaired the water pipes.

These four paragraphs are admitted by the defendant. The complaint further alleges in the remaining six paragraphs that before the execution of the contract defendant represented to plaintiffs that the heater, so far as she knew, was in good condition; that it was discovered in September of that year to be in defective condition, and beyond repair, so that the same had to be replaced by another heater at a cost of $238.37; that defendant knew at the time of the execution of the contract and of the delivery of the deed that the heater was in defective condition, and incapable of use, and her fraudulent representations and fraudulent concealment of the condition of the heater were made to induce the contract of sale, and that thereby plaintiffs were induced to conclude the contract; that after the discovery of the defects in the heater plaintiffs notified the defendant thereof, and requested her to live up to her contract to leave the premises in good order which she refused to do. All of these latter allegations except as to the request and refusal last mentioned were put in issue by denial or allegation of lack of knowledge.

At the conclusion of plaintiffs' evidence the court granted a nonsuit, and later denied a motion to set the same aside, and from the action of the court plaintiffs appeal.

James T. Colvin, one of the plaintiffs, testified that on March 28 1918, he visited the premises with his wife, his mother, and William J. Davis, a real estate agent employed by the defendant, and there met the defendant, and inspected the house with a view of purchasing it; that after inspecting the other parts of the house the party visited the cellar especially to examine the heater, and that Davis struck a match and looked into the heater, which was without a fire, cold, and full of ashes, and that no defects were visible; that after coming upstairs he inquired of Davis regarding the heater, " and he asked Mrs. Delaney if she knew the condition of the heater, and she said nothing; she made no reply whatever. * * * Then I asked Mrs. Delaney myself, and she answered in this manner: ‘ As far as I know, the heater is in good condition.’ " Colvin further testified that he observed that defendant was getting heat by using oil heaters, and the ceilings were all smoked as though used for some time; that there was one lighted in the dining room and one in the kitchen. He testified that he next met defendant three or four days later in Davis' office, where the contract was drawn up and executed, and that before he signed it he again asked defendant if the heater was in good condition, and she replied, " As far as I know the heater is in good condition." Colvin was accompanied also at this time by his wife and mother, and Davis was present. He testified that later in the course of the interview at the office he addressed to the defendant the question, " Are you sure about the heater?" and she answered " so far as I know the heater is in good condition," and that he took her word for it and was thereby induced to purchase the place. He also testified that he moved into the house about May 1, and in September of that year he turned the water into the heater, and that it poured out from all three sections of the boiler, which leaked like a sieve; that he had the heater examined by a Mr. Cranick, a steam fitter employed by Charles Andrews, a heating contractor, who afterward attended to the installation of a new boiler, and made other repairs in connection therewith, all at an expense of $238.87. He also testified that upon discovering the condition of the heater he called in company with his mother upon defendant at her residence and requested her to make good the defective heater, or to help pay for fixing...