Nothe v. Nomer

• Citation: 54 Conn. 326,8 A. 134
• Court: Supreme Court of Connecticut
• Decision Date: 18 June 1886
• Parties: NOTHE v. NOMER.

8 A. 134

54 Conn. 326

NOTHE

v. NOMER.

Supreme Court of Errors of Connecticut.

June 18, 1886.

Appeal from court of common pleas, New London county.

Action to recover back money paid. Plaintiff had judgment below.

T. M. Thayer and C. F. Thayer, for appellant.

S. Lucas, for appellee.

PARK, C. J. The plaintiff and the defendant are Germans, and when the transaction in this case occurred the plaintiff could not read or speak the English language, but the defendant could do' both. The defendant, knowing that the plaintiff desired to purchase certain real estate, represented to him that he, the defendant, could make the purchase for the sum of $550. The plaintiff engaged the defendant to make the purchase, and gave him the sum of $345 in part payment of the purchase price. The defendant made the purchase for the sum mentioned, and paid the grantor the sum of $320 in cash, and gave his note for the balance. The defendant took a deed of the premises in his own name, and mortgaged them to the grantor to secure the note, which mortgage still remains on the property. Thereupon the defendant made a quitclaim deed of the property, and executed it and had it recorded on the town records, but by mistake inserted therein the name "Adolph Noda," instead of the name of the plaintiff. Soon after, the defendant delivered the deed to the plaintiff, when the latter discovered the mistake, and gave the deed back to the defendant, telling him of the mistake in the name. The defendant took the deed, promising to have it corrected; and the plaintiff, relying on the promise, soon after went into the possession of the premises. The defendant had the name "Adolph" erased from the deed, and the name "August" inserted, but the name "Noda" was not disturbed, and the deed in this condition was returned to the wife of the plaintiff, who laid it away for safe-keeping. There was no new execution or acknowledgment of the deed. The plaintiff's full name was Frederick August Nothe. He had a son whose name was Adolph Nothe.

About four months after these transactions the plaintiff discovered that the deed returned to his wife was fatally defective, and then informed the defendant that he would pay him the balance due on the property for a good title to it, but the defendant refused to do anything more about the title. The plaintiff afterwards made repeated requests of the defendant for a good title, and was as repeatedly refused, till at last the plaintiff told him that he must give him a good title to the premises or pay him back the money he had paid on the property; but the defendant refused to do either. The plaintiff thereupon demanded back the money he had paid the defendant, which the latter refused to return, and afterwards this suit was brought.

The defendant refused absolutely to carry out his part of the contract by giving the plaintiff a good title to the property, and this was equivalent to an abandonment of the contract on his part, and it gave the plaintiff the right to rescind the contracts and...