Leventhal v. Town of Stratford

• Decision Date: 14 April 1936
• Citation: 121 Conn. 290,184 A. 587
• Court: Connecticut Supreme Court
• Parties: LEVENTHAL v. TOWN OF STRATFORD.

184 A. 587

121 Conn. 290

LEVENTHAL v. TOWN OF STRATFORD.

Supreme Court of Errors of Connecticut.

April 14, 1936

Appeal from Court of Common Pleas, Fairfield County; Edward J Quinlan, Judge.

Action by Harry M. Leventhal against the Town of Stratford for damages for breach by the defendant of its contract to pay to the plaintiff from the earnings of a certain Mack truck at the rate of $10 per week, until a total sum of $1,399.29 plus interest had been paid. From a judgment for defendant plaintiff appeals.

Error and cause remanded.

David R. Lessler, of Bridgeport, for appellant.

Raymond E. Baldwin, of Bridgeport, for appellee.

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

BROWN, Judge.

The finding corrected in so far as the record warrants, discloses the following pertinent facts: May 27, 1933, Charles J Heimann was indebted to the defendant for taxes and for funds advanced by it to him as a relief measure, in an amount exceeding $1,000. On that date under arrangement made with the defendant's town manager Sammis, who had general authority to represent it, Heimann, by bill of sale, transferred his 1924 Mack truck to the defendant to be used by it, such part of its earnings as necessary for his living to be paid to him, and the balance to be applied to reduce his indebtedness to the town, and the truck to be transferred back when this was fully paid. Up to November 15, 1933, after deducting the expense of operating and maintenance, the truck's net earnings were $697.35, which was divided between Heimann and the defendant as agreed. From May 27, 1933, on, the truck was driven by an employee of the defendant other than Heimann, was serviced and repaired by it, and except when in actual use, was kept in the town yard.

At the time of the transfer of the truck to the defendant, Heimann owed the plaintiff $1,337.25. This was unknown to the defendant and its officers, however, and the transfer was not made to avoid attaching creditors. On January 24, 1934, pursuant to a writ returnable to the superior court in Fairfield county in favor of the plaintiff, in which Heimann and the defendant were named defendants, a sheriff seeking to attach this truck came to the town manager's office. Sammis deprecated his going through with the proposed attachment, saying it would tie Heimann up so that he could not pay any of his debts, and suggested that instead the sheriff ascertain from his principal whether an arrangement could be made whereby Heimann, the defendant, and the plaintiff could each procure a share in the earnings of the truck. He agreed meantime not to use the truck. To further the realization of this proposal, it was agreed in consideration of the sheriff refraining meantime from taking actual possession of the truck, that Sammis should keep but not use it, and the attachment thereof should be effective as between this plaintiff and defendant, until action had on the town manager's suggestion. January 27, 1934, as a result of the consequent negotiations of the parties, the plaintiff's attorney notified Sammis that the truck was released.

This and the plaintiff's discontinuance of the proceedings in the superior court were pursuant to the agreement of these parties and Heimann recited in Exhibit A, the town manager's letter to the plaintiff's attorney, whereby the defendant agreed " in the event of being permitted to use the *** truck, *** to take the earnings of that truck and split it three ways; one-third to go to the Town of Stratford for taxes and one-third to go to *** Heimann. In the event that the earnings are not sufficient to make the Leventhal third equivalent to ten dollars, ten dollars will be paid, making the Leventhal weekly share not less than the minimum of ten dollars. By doing this it will enable the Town of Stratford to still get some revenue in tax delinquency payment, give Heimann something to enable him to keep the truck going, and also provide a definite cash return to Mr. Leventhal which he otherwise would not be able to procure." Upon request on March 5, 1934, after the plaintiff had indorsed his formal approval on this letter, his attorney inclosed it to the defendant's attorney, in a letter stating the amount due from Heimann to the plaintiff, including the costs in the superior court action, to be $1,399.29, and suggesting remittances by the defendant once every three months. The defendant's attorney replied that he had suggested this to the town and it would so remit.

On March 5, 1934, and thereafter, the defendant was conducting a public works program necessitating the hiring of a number of trucks owned by others. The plaintiff never reattached the truck nor retracted his permission to the defendant to use it, and the truck was always available for its use when and if the defendant desired to use it. Had the defendant used the truck, it would have produced, when so utilized, sufficient net earnings to provide something each week on Heimann's debt to it, to pay him something each week, and to pay the plaintiff at least the $10 weekly minimum. Notwithstanding, the defendant never used the truck after November 15, 1933. In October, 1934, the defendant's common council enacted a resolution declaring that no truck not actually owned by the defendant town should be used. This resolution is still in full effect and applicable to this truck. Thereafter the defendant notified the plaintiff that it would not use the truck again, nor make any payment under the above agreement. There is due from Heimann to the plaintiff $1,467.58 with interest from January 27, 1934.

The first count of the complaint sets forth a claim for damages under the contract Exhibit A for the defendant's alleged actual breach for the period of forty-two weeks to date totaling $420, and for its further breach by declaring to the plaintiff it would pay nothing thereunder. The second count, filed as an amendment, contains the allegation of the passage of an ordinance by it forbidding the hiring of such a truck, as a further breach. The defendant's answer contains in effect a denial, and as a special defense a plea which its counsel terms one of ultra vires. The court, by its judgment, found the issues for the defendant.

Whether the court erred in rendering this judgment depends upon the interpretation and legal effect to be accorded to the contract. The fundamental question of interpretation is as to whether the contract contained an implied promise by the defendant to use the truck. The law is clear that a contract includes not only what is expressly stated therein, but also what is necessarily implied from the language used. Rockwell v. New Departure Mfg. Co., 102 Conn. 255, 287, 128 A. 302; 13 C.J. p. 558, § 521. No special form of words, but that the promise appears upon a fair interpretation, is the essential. " Not only then may promises exist *** where the language is in terms that of promise, but also where the agreement shows that the parties *** have intended an obligation though they failed so to state in clear terms." 2 Williston, Contracts, p. 1290, § 670. " If it can be plainly seen from all the provisions of the instrument taken together, that the obligation in question was within the contemplation of the parties when making their contract, or is necessary to carry their intention into effect-in other words, if it is a necessary implication from the provision of the instrument- the law will imply the obligation and enforce it." 6 R.C.L. p. 856, §...