Helming v. Kashak

• Decision Date: 07 April 1937
• Court: Connecticut Supreme Court
• Parties: HELMING v. KASHAK.

191 A. 525

122 Conn. 641

HELMING v. KASHAK.

Supreme Court of Errors of Connecticut.

April 7, 1937

Appeal from Court of Common Pleas, Hartford County; Edwin M. Ryan Acting Judge.

Action by Emma Helming against Anthony H. Kashak, to recover damages for alleged misrepresentations made by the defendant in conjunction with purchase from plaintiff of a mortgage brought to the court of common pleas of Hartford county and tried to the court. Judgment for defendant, and plaintiff appeals.

No error.

Aaron Nassau and Francis P. Rohrmayer, both of Hartford, for appellant.

William N. DeRosier, of Bristol, for appellee.

Argued before MALTBIE, C.J., and HINMAN. BANKS, AVERY, and BROWN JJ.

BROWN Judge.

In this action to recover damages alleged to have been sustained by the plaintiff by reason of the defendant's misrepresentations incident to his purchase from her of a second mortgage which she owned upon real estate in Bristol the court found that the defendant made the claimed false representations knowing they were untrue, to induce the plaintiff to sell, but concluded that the plaintiff neither relied thereon nor suffered any damage in consequence of the sale as made, and so gave judgment for the defendant. It is undisputed that the elements essential to sustain an action of this nature are: (1) A representation made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made for the purpose of inducing the other party to act upon it; (4) that the latter was in fact induced to act thereon; and (5) that he did so act to his injury. Bradley v. Oviatt, 86 Conn. 63, 67, 84 A. 321, 42 L.R.A.(N.S.) 828; Laukaitis v. Klikna, 104 Conn. 355, 359, 132 A. 913; Barnes v. Starr, 64 Conn. 136, 150, 28 A. 980. The plaintiff cannot prevail upon this appeal therefore if neither of the court's conclusions was warranted.

In so far as the issues upon this appeal are concerned, these undisputed facts appear from the finding. On September 25 1935, the plaintiff was the owner of a second mortgage bearing interest at 6 per cent., upon which a balance of $1,750 principal was due, on property in Bristol, known as No. 190 High street, owned by Timothy Stack, the other incumbrances being a first mortgage for $7,000, plus $64 accrued interest, and $549.07 in unpaid taxes. The defendant was a real estate broker and had arranged an agreement for the exchange of Stack's property to Mike Chowanek and wife for their property in Plymouth, by the terms of which, in addition to deeding their property to Stack, they were to assume the mortgages in the amounts above stated, and to pay $1,000 in cash. This agreement was conditioned upon the procuring of an agreement from the plaintiff to allow a 20 per cent. discount on her mortgage if paid off within a year. On September 25, 1935, the instruments essential to close the transaction were executed and left with the defendant in escrow, to be held until this condition was met. The defendant thereupon sought out the plaintiff at her home and offered her $500 for a release of her mortgage, stating that he had a purchaser for the Stack property at the price of $8,000, $7,000 of which was to be paid by the assumption of the first mortgage and the balance of $1,000 in cash. He did not disclose who the purchaser was. The next day the plaintiff delivered a release of her mortgage to the defendant in return for his check for $500. Thereafter the exchange of...