Lesser v. Altnacraig Convalescent Home, Inc.
Decision Date | 08 July 1957 |
Citation | 133 A.2d 908,144 Conn. 488 |
Court | Connecticut Supreme Court |
Parties | Lawrence K. LESSER v. ALTNACRAIG CONVALESCENT HOME, Inc. Supreme Court of Errors of Connecticut |
Robert K. Lesser, Bridgeport, for appellant (plaintiff).
Edger W. Krentzman, Bridgeport, with whom, on the brief, was Jacob Mellitz, Bridgeport, for appellee (defendant).
Before O'SULLIVAN, C. J., and BALDWIN, WYNNE, DALY and KING, JJ.
The plaintiff alleged in his complaint that under his brokerage contract with the defendant he was entitled to a commission 'if [he] found a customer ready, able and willing to purchase the real property and other assets of the defendant corporation' upon the terms fixed by the defendant; that as a result of his efforts Alma J. Scofield and the defendant executed a contract of sale embodying such terms; and that Mrs. Scofield 'was and is ready, willing and able to consummate the bargain and purchase said property, upon the terms submitted by the defendant.' The defendant admitted the allegations as to the contract of brokerage and the execution by the defendant and Mrs. Scofield of the contract of sale but denied the allegation as to Mrs. Scofield's being ready, willing and able to carry out the terms of the contract of sale. In fact, the sale was never consummated.
The court, in effect, charged that the execution of the contract of sale between the defendant and Mrs. Scofield, on the evidence as it had come in, established that, as had been alleged, she was ready and willing to buy the property but that the plaintiff had the burden of proving the allegation as to Mrs. Scofield's ability to carry out the terms of the contract and that this was really the only issue for the jury to determine. The plaintiff's appendix contains evidence that Mrs. Scofield was not able to pay in accordance with the terms of the contract. Unless the execution of the contract established as a matter of law that she was able to pay, there was ample justification for the jury's failing to find that she was.
The plaintiff filed no requests to charge and took but two exceptions. The second was without merit and was quite properly not included in the assignments of error. The first exception was as follows: 'The exception I take is to the fact that we have to prove ability once there is a written contract.' It will be assumed, for purposes of this appeal, that this exception is as broad as the motion for a directed verdict in the plaintiff's favor which was made at the close of the evidence. The grounds for this motion were (a) that the plaintiff was entitled to recover his commission as a matter of law because he had secured a customer who had executed a valid written contract with the seller for the purchase of the property on the terms agreed upon, and (b) that if it were necessary, in order to recover a commission, to establish ability of the buyer, the plaintiff had established it as a matter of law.
The plaintiff having alleged, and the defendant having admitted, that under his contract of employment he was entitled to a commission if he procured a customer ready, willing and able to buy on the prescribed terms, and the plaintiff having further alleged, and the defendant having denied, that the customer who signed the contract of sale was ready, willing and able to buy on those terms, the plaintiff had the burden of proving the latter allegations, although, as previously noted, the court in effect charged that, as the evidence had come in, the only issue was that of Mrs. Scofield's ability to carry out the terms of the contract of sale.
It is immaterial whether, under other pleadings, the execution by the defendant and Mrs. Scofield of a valid contract for the sale of the property would have entitled the plaintiff to his commission under the rule of cases such as Leete v....
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...11, 437 A.2d 822 (1980) (party "was entitled to rely on the representation" of opposing counsel); Lesser v. Altnacraig Convalescent Home, Inc. , 144 Conn. 488, 491–92, 133 A.2d 908 (1957) ("[i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as ......
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Nugent v. DelVecchio, 757
...assumes the burden of proving that the customer produced was in fact ready, willing and able to buy. Lesser v. Altnacraig Convalescent Home, Inc., 144 Conn. 488, 491, 133 A.2d 908 (1957). As an alternative theory of recovery, the broker can also prevail by showing that he has procured a bin......
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Walsh v. Turlick
...from that contract they were not required to prove the ability of the buyer to complete the transaction. In Lesser v. Altnacraig Convalescent Home, Inc., 144 Conn. 488, 133 A.2d 908, the plaintiff alleged a sales contract in his complaint but he further alleged that the customer was ready, ......
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Haffey v. Lemieux
...from pleadings which lack the clarity, precision and accuracy called for by our rules. Cf. cases such as Lesser v. Altnacraig Convalescent Home, Inc., 144 Conn. 488, 491, 133 A.2d 908. There is no In this opinion the other judges concurred. 1 In 1963, the General Assembly, by what is now Ge......