Nicholson Realty, Inc. v. Libby

• Decision Date: 29 October 1957
• Citation: 135 A.2d 738,144 Conn. 555
• Court: Connecticut Supreme Court
• Parties: The NICHOLSON REALTY, Inc. v. Nathan LIBBY et al. Supreme Court of Errors of Connecticut

Page 738

135 A.2d 738

144 Conn. 555

The NICHOLSON REALTY, Inc. v.Nathan LIBBY et al.

Supreme Court of Errors of Connecticut.

Oct. 29, 1957.

Charles Stroh, Hartford, with whom was John W. Joy, Hartford, for the appellants(defendants).

Thaddeus W. Maliszewski, Hartford, for the appellee(plaintiff).

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

KING, Associate Justice.

The plaintiff, a real estate broker, brought this action to recover a commission.The first count of the complaint alleged, in effect, that the defendant owners orally agreed to list the property with the plaintiff at a net selling price of $72,500, with a commission of $7500, making a gross selling price of $80,000; that thereafter the president of the plaintiff showed the property to officers of the Chesley Construction Corporation, hereinafter referred to as Chesley, and an oral agreement was made for a sale of the property to Chesley for $80,000, although the defendants refused to put anything in writing until their attorney had prepared an agreement of sale; that at the attorney's office the defendants, before they would have the written agreement prepared, demanded that the plaintiff's commission be reduced to $5000, which demand the plaintiff rejected; that Chesley was ready, willing and able to sign a contract for the purchase of the property and to purchase the property at the price asked by the defendants when they retained the plaintiff's services; and that the plaintiff is entitled to a commission of $7500.In a second count the plaintiff sued for the fair value of its services, but this count was not submitted to the jury and is not involved in this appeal.A verdict of $6500 was returned by the jury on the first count.

The defendants filed no requests to charge.They took two exceptions to the charge.Their other assignments of error not addressed to the finding complain of one ruling on evidence and the court's denial of their motion to set aside the verdict.

The defendants have made an extensive attack on the finding.No finding was needed, nor could one be used, in connection with the assignment of error attacking the denial of the motion to set aside the verdict, since the action of the court is tested by the evidence, not by the finding.Marley v. New England Transportation Co., 133 Conn. 586, 590, 53 A.2d 296;Maltbie, Conn.App.Proc.(2d Ed.) § 185, p. 227.In the instant case, the only purpose of a finding is to test the two claims of error in the charge and the single claim of error in a ruling on evidence.The finding as made is substantially adequate for review of these three assignments of error and cannot be corrected in any respect which will benefit the defendants.

The defendants excepted to the charge on the ground that it did not clearly state that the plaintiff would not be entitled to a commission for negotiating a mere option to purchase the property, since such a service was not within the terms of the plaintiff's employment as alleged in the complaint.While the court's amplification of its charge in response to this exception, considered alone, may well have been inadequate or even erroneous, the charge as a whole made it sufficiently clear that the plaintiff was not entitled to a commission unless an actual agreement of sale, even though unenforceable under the Statute of Frauds because oral, was reached between buyer and seller.The second exception to the charge was not pursued in the brief, and the claim of error based thereon is therefore construed as abandoned.Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468.

The defendants objected to a question asked of the witness Chessari as to Chesley's financial condition, on the ground that since Chessari, as a witness called by the plaintiff, had already testified that the terms of the contract of purchase had not been agreed upon, the financial ability of the buyer was immaterial.Chessari's testimony was not a judicial admission of the plaintiff...