Hughes v. Contemporary Mission, Inc.

• Decision Date: 18 March 1980
• Citation: 429 A.2d 827,180 Conn. 150
• Court: Connecticut Supreme Court
• Parties: William K. HUGHES v. The CONTEMPORARY MISSION, INC., et al.

Page 827

429 A.2d 827

180 Conn. 150

William K. HUGHES v. The CONTEMPORARY MISSION, INC., et al.

Supreme Court of Connecticut.

Argued Feb. 15, 1980.

Decided March 18, 1980.

William D. O'Reilly, with whom was William F. Dow, New Haven, for appellant (named defendant).

Warner K. Depuy, Stamford, with whom, on the brief, was Richard J. Tobin, Stamford, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

PER CURIAM.

The issues on this appeal concern alleged agreements not to pursue rights to foreclose on a note and mortgage in default. The plaintiff, William K. Hughes, brought an action to foreclose a mortgage against the defendant, The Contemporary Mission, Inc., and other defendants having an interest in the designated premises at 285 Saugatuck Avenue, Westport, Connecticut. The defendant, The Contemporary Mission, Inc. (hereinafter the Mission) appeals from the adverse judgment ordering foreclosure rendered by the trial court, Callahan, J., after a full trial on the merits.

The trial court's findings disclose that the plaintiff Hughes transferred the property in question to the defendant Mission in November 1972, in return for the Mission's execution of a promissory note and first mortgage deed in favor of Hughes. The Mission came to be in default in its mortgage payments, and formal demand for payment of all sums due and owing was made by Hughes' attorney. When payment was not forthcoming, the instant action for foreclosure ensued.

The main thrust of the appeal is that the trial court erred in concluding that there had been neither an agreement to forbear from bringing a foreclosure action nor an agreement to settle the foreclosure action. The question of agreement is a question of fact where, as here, there was conflicting evidence as to the intention of the parties to forbear or to settle. It is axiomatic that it is in the province of the trial court to assess the credibility of witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975); Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619 (1969); Solari v. Seperak, 154 Conn. 179, 183, 224 A.2d 529 (1966); Shakro v. Haddad, 149 Conn. 160, 162, 177 A.2d 221 (1961). On the evidence before it, the trial court could reasonably have found, as it did, that Hughes did not agree not to bring a suit to foreclose. That finding of fact has not been specifically challenged. The trial court's finding of fact that the parties never agreed to a settlement, despite negotiations undertaken toward that end, is equally supported by credible evidence. As we recently reiterated: "Whether a contractual commitment has been undertaken is ultimately a question of the intention of the parties. 'Intention is an inference of fact, and the conclusion is not reviewable unless it was one that the trier could not reasonably make.' Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 653, 353 A.2d 714, 717 (1974); Bianco v. Darien, 157 Conn. 548, 557, 254 A.2d 898 (1969); Finlay v. Swirsky, 98 Conn. 666, 671, 120 A. 561 (1923)." Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 427 A.2d 856 (1980). Our review of the briefs and the record reveals no error in the trial court's conclusions concerning lack of agreement to forbear or to settle. In the absence of agreement, it is of no moment whether or not the...