Damora v. Christ-Janer

• Decision Date: 05 May 1981
• Docket Number: CHRIST-JANER
• Citation: 441 A.2d 61,184 Conn. 109
• Court: Connecticut Supreme Court
• Parties: Robert DAMORA v. Victor

Page 61

441 A.2d 61

184 Conn. 109

Robert DAMORA v. Victor CHRIST-JANER.

Supreme Court of Connecticut.

Argued March 11, 1981.

Decided May 5, 1981.

Richard B. Cramer, New Haven, with whom, on the brief, was Daniel Y. Sachs, New Haven, for appellant (plaintiff).

Gordon R. Paterson, Stamford, for appellee (defendant).

Before BOGDANSKI, C. J., PETERS, HEALEY, ARMENTANO and SHEA, JJ.

PER CURIAM.

The plaintiff brought this action seeking to recover the value of services performed pursuant to an oral agreement and for a breach of an oral agreement with the defendant. From the judgment rendered in favor of the defendant, the plaintiff has appealed.

The trial court could have reasonably found the following: The plaintiff is a highly respected architectural photographer, and the defendant is a highly regarded architect. At the time of this lawsuit the two had known and intermittently worked with each other for twenty-five years.

Prior to 1976, the defendant had designed the renovation of unused factories and loft space into commercial space in Bridgeport. In the spring of 1976, the two parties met in the defendant's office in New Canaan. During the meeting, the defendant's work in Bridgeport was discussed. The parties became enthusiastic about the potentiality of publicizing the defendant's revitalization efforts in Bridgeport. The two agreed to work together in a two-part program designed to promote Bridgeport: first, by magazine publication, and, second, by an exhibition. The two parties agreed that the defendant would try to raise funds for the proposed project from his sources in Bridgeport. ¹

In August of 1976, the parties met again in the defendant's office. The plaintiff had prepared a letter dated August 17, 1976, which was read in the office, and which began with a description of a two-part proposal concerning (1) a feature on Bridgeport in the December, 1976, "revitalization issue" of Architectural Record and (2) a "revitalization of Bridgeport" exhibit. The letter concluded by stating that the plaintiff's fees and costs for the work would be $15,000. The plaintiff testified that the defendant made no objection to the amounts in the letter, and that the $15,000 was for his photographic work. The defendant testified that he never agreed to any amount for photographic work. This testimony was supported by that of his associates.

Later in August, the plaintiff told the defendant that he needed some money in order to get the pictures and article in the Architectural Record. To ensure that publication, the defendant gave the plaintiff $3500 from his personal funds. In addition, the defendant solicited $2000 from the People's Savings Bank for the project, which sum was matched by the Chamber of Commerce. These monies were paid by the defendant to the plaintiff and, according to the defendant, they represented the portion of the money allocated for the publication of the article. The article, as planned, was published in 1976. Because additional funds could not be raised, the exhibition never materialized.

In a two-count complaint, the plaintiff brought this action seeking to recover monies from the defendant for work done pursuant to alleged oral agreements between the parties. The first count alleged an oral agreement and sought damages for the reasonable value of services rendered between May and November, 1976. The second count alleged an oral agreement, entered into on or before August 17, 1976, and claimed that the defendant agreed to pay a certain sum for services. The court found in favor of the defendant on both counts; the plaintiff has appealed only from the second count. He raises three claims on appeal, and contends that the trial court erred (1) in allowing the defendant to raise the defense of joint venture for the first time at trial, and in accepting that characterization; (2) in permitting extrinsic parol evidence to contradict the terms of the parties' August 17, 1976 memorandum of agreement; and (3) "in importing certain conditions into the defendant's unconditional obligation to pay, and in holding that the non-occurrence of these conditions released (the) defendant from further liability."

The plaintiff first claims that the court erred in allowing the defendant to raise the defense of joint venture for the first time at trial. Under the circumstances of this case, he contends that, pursuant to Practice Book § 164, ² the existence of a joint venture must be specially pleaded, which was not done.

Even assuming that, under the facts of this case, the characterization of the relationship between the parties as a joint venture had to be specially pleaded, and could not have been raised under a general denial, we note that the plaintiff never objected at trial to the introduction of evidence on this issue. We have repeatedly held that "(t)he failure to file a special defense may be treated as waived when it appears that no objection was raised to the offer of evidence on the issue at the trial." Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 479, 289 A.2d 896 (1971); see Alderman v. Hanover Ins. Group, 155 Conn. 585, 590, 236 A.2d 462 (1967); Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964); see also Mainolfi v. Brazee, 135 Conn. 435, 437, 65 A.2d 261 (1949); O'Donnell v. Groton, 108 Conn. 622, 625, 144 A. 468 (1929). Accordingly, we find no error on this issue.

The plaintiff also claims that even if such evidence were admissible, the court erred in accepting that characterization of the relationship between the parties. The court did not expressly find a joint venture between the parties, but rather concluded that the plaintiff did not meet his burden of proof with regard to his version of the agreement as alleged. This issue is essentially one of credibility.

We have repeatedly held that "nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." Smith v. Smith, --- Conn. ---, 438 A.2d 842 (42 Conn.L.J., No. 33, p. 12) (1981), quoting Steinman v. Maier, 179 Conn. 574, 576, 427 A.2d 828 (1980). "The trier is privileged to adopt whatever testimony it reasonably believes to be credible." Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974); Branford Sewer Authority v. Williams, 159 Conn. 421, 424-25, 270 A.2d 546 (1970). We will not reverse the decision of the trial court unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § 3060D; Miller v. Appleby, --- Conn. ---, ---, 438 A.2d 811 (42 Conn.L.J., No. 31, pp. 7, 8) (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). Upon review, we find no error in the court's conclusion that the plaintiff failed to meet his burden of proof with respect to his characterization of the agreement between the parties.

Invoking the parol evidence rule, the plaintiff's second contention is that the trial court erred in permitting parol evidence to contradict the clear terms of the August 17, 1976 letter between the parties. He claims that this letter clearly and unambiguously contained all the terms of the agreement between the parties.

Under the parol evidence rule, which is a rule of substantive law rather than a rule of evidence, "if a written contract is found to be the final repository of agreements made between the parties, evidence of a prior unwritten agreement would not be allowed to have any effect on the agreement as integrated in the writing. Harris v. Clinton, 142 Conn. 204, 210, 112 A.2d 885 (1955); Jarvis v. Cunliffe, 140 Conn. 297, 299, 99 A.2d 126 (1953); 3 Corbin, Contracts § 573.... Whether the written contract was actually the final repository of the oral agreements and dealings between the...