Garber v. Goldstein

• Decision Date: 15 December 1917
• Citation: 92 Conn. 226,102 A. 605
• Court: Connecticut Supreme Court
• Parties: GARBER. v. GOLDSTEIN.

102 A. 605

92 Conn. 226

GARBER.

v. GOLDSTEIN.

Supreme Court of Errors of Connecticut.

Dec. 15, 1917.

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge.

Action by Samuel Garber against Isaac Goldstein to recover damages for refusal to allow plaintiff to take possession of leased premises. From a decree for plaintiff, defendant appeals. Reversed, and new trial ordered.

Walter J. Walsh, of New Haven, for appellant.

Philip Pond, of New Haven, for appellee.

WHEELER, J. That part of the case which requires discussion is confined to a single issue.

Both parties agree that they entered into an oral agreement the terms of which were in part contained in the following instrument, Exhibit A, executed and delivered to the plaintiff by the defendant:

"New Haven, Conn.

"Received of Mr. S. Garber the sum of $40 as a deposit on store 122 Congress avenue for the sum of $80 per month from March 15, 1915, to March 15, 1916, and the remainder of two years at the rate of $85 per month.

"Isaac Goldstein."

The defendant claimed in evidence as a part of the agreement that the plaintiff was to give him a bond guaranteeing the payment of the rent, and that the parties mutually agreed that a formal lease should be prepared and executed before possession should be taken by the plaintiff.

The plaintiff disputed the agreement that he was to give this bond. He admitted that there was an agreement to make a more formal lease. While his counsel now claim and some attempt was made by him on the trial to claim that this formal lease was not to be made until after the plaintiff had possession, we think his own evidence as a whole does not admit of this construction. But, whether this is so or not, it does not change the issue before the jury. That was that the plaintiff claimed that the agreement made was a letting, and the defendant claimed that it was a mere agreement to lease.

The defendant requested the court to charge the jury that it was incumbent upon the plaintiff to prove that he had a written lease, and not an agreement for a lease; that the instrument executed by the defendant did not constitute a lease, and was not a sufficient memorandum to take the case out of the statute of frauds.

The court charged the jury that the principal issue to be decided was whether a lease was in fact made, and that, if they found Exhibit A was signed by the defendant and delivered to the plaintiff, and that the plaintiff had not failed to carry out some condition resting in parol and collateral to the instrument and made at the time it was executed and a condition precedent to the right of the plaintiff to possession, and that the execution of no more formal instrument was contemplated, then Exhibit A was a valid lease.

The existence of an agreement to furnish the bond was in issue, and the verdict of the jury was conclusive that no such agreement existed.

The agreement to execute and deliver a formal lease was not in issue; both parties admitted the existence of this agreement.

If the existence of this agreement to make a formal lease were decisive of whether Exhibit A were a lease, the jury should have been instructed that Exhibit A was...