Jacobson v. Hendricks

• Decision Date: 03 February 1910
• Citation: 83 Conn. 120,75 A. 85
• Court: Connecticut Supreme Court
• Parties: JACOBSON et al. v. HENDRICKS et al.

75 A. 85

83 Conn. 120

JACOBSON et al.

v. HENDRICKS et al.

Supreme Court of Errors of Connecticut.

Feb. 3, 1910.

Appeal from Superior Court, New Haven County, Howard J. Curtis, Judge.

Action by Rudolph Jacobson and others against W. J. Hendricks, Jr., and others for specific performance and damages. From a judgment for two of defendants, plaintiffs appeal. Affirmed.

The defendants are W. J. Hendricks, Jr., individually and as executor and trustee of the estate of his late wife, Lina M. Phipps, as trustee, Arlena M. Williams, Mr. and Mrs. H. T. Kelsey (the former as the husband of the latter), W. W. Hawkes, and J. Birney Tuttle, individually and as administrator c. t. a. of the estate of Mrs. Hendricks. The complaint alleges that in September, 1908, the defendants, except the last two named, acting through their agent, one Lewis, entered into an agreement with the plaintiffs, subject to their approval and subsequently approved by them, whereby they undertook to convey to the plaintiffs within a reasonable time certain described real estate in New Haven known as Nos. 27 and 29 High street, of which they were the legal and equitable owners, in consideration of the assumption by the latter of an existing mortgage thereon of $6,000, a cash payment by them of $2,000, of which $200 was to be and was paid down, and the giving back of a second mortgage upon the property of $1,000; that the plaintiffs have ever since been ready and willing to carry out said agreement and perform their part of it, and have made demand that the conveyance be made to them as agreed; and that the defendants have neglected and refused to make such conveyance. It is further alleged that the defendants Hendricks, Mr. and Mrs. Kelsey, and Miss Williams, in violation of their said agreement, have conveyed their several interests in said premises to the defendant Hawkes; that Mrs. Hendricks at the time of her decease was a resident of Brooklyn, in the state of New York; that she left as her only heir at law and next of kin a daughter; that she left a will which named her said husband as executor and trustee; that Mrs. Hendricks was the owner of an undivided one-fourth of said property; that, in order to enable a conveyance of her said interest to be made, application was made to the court of probate in New Haven that a copy of her will might be filed and recorded in said court and letters testamentary be granted to the executor named therein; that the defendants Hawkes and Tuttle thereupon, and having full knowledge of the agreement with the plaintiffs, in co-operation with others of the defendants to the plaintiffs unknown, conspired and undertook to prevent the conveyance of the property to the plaintiffs; that in pursuance of such undertaking and conspiracy, and to the end that the property might be conveyed to the defendant Hawkes, they obtained from the court of probate the appointment of Tuttle as administrator c. t. a. of Mrs. Hendricks' estate and trustee under her will, and authority to him to sell the interest of her estate in the property; that, in further pursuit of said undertaking, these defendants sought to induce the remainder of them not to convey the property to the plaintiffs, and that thereafter Tuttle, as administrator as aforesaid, Mr. Hendricks, Mr. and Mrs. Kelsey, and Miss Williams conveyed their several interests to the defendant Hawkes, who still retains them, so that the legal title to the premises is now in him and Miss Phipps. It is further averred that the premises are centrally located in the city of New Haven, are convenient to the plaintiffs' business, and were purchased by them for the purposes of residence.

Upon the motion of the defendants, the court passed an order that the plaintiffs should file a copy of all the writings relied upon by them to establish the agreement set up in the complaint. This order was complied with by the filing of two receipts for the money paid down, an unsigned memorandum made by Lewis purporting to express the result of his negotiations with the plaintiffs and sundry letters which passed between Lewis and his principals before and after his negotiations with the plaintiffs were concluded, and the unsigned memorandum made. The memorandum, after stating the terms of sale, concludes: "This agreement to be subject to the approval of the heirs of the estate of Dorothy Williams." It is not questioned that the persons intended by this description were the alleged owners of the property—Lewis' principals. Simultaneously with the filing of these papers the plaintiffs amended their complaint by alleging that Lewis, after the preparation of said memorandum, submitted it to the persons whose approval thereof was required, and that such approval was given in writing, as appeared from the copies of writings filed.

The defendants Hawkes and Tuttle demurred to the complaint, urging, among other things, that it was insufficient, in that it disclosed the lack of an enforceable agreement within the requirements of the statute of frauds.

Richard H. Tyner and Earnest C. Simpson, for appellants.

J. Birney Tuttle, for appellees.

PRENTICE, J. (after stating the facts as above). The plaintiffs are seeking to enforce a contract for the sale and conveyance of real estate. Pursuant to an order of court, they have spread upon the record as a part of their complaint all the writings upon which they claim to rely in establishing the existence of a memorandum in writing evidencing the contract sought to be enforced such as will satisfy the requirements of the statute of frauds. For the purposes of the demurrer, which has been filed by two of the...