Paiva v. Vanech Heights Const. Co.

• Decision Date: 23 June 1970
• Citation: 271 A.2d 69,159 Conn. 512
• Court: Connecticut Supreme Court
• Parties: Joseph M. PAIVA et al. v. VANECH HEIGHTS CONSTRUCTION COMPANY, Inc., et al.

Page 69

271 A.2d 69

159 Conn. 512

Joseph M. PAIVA et al. v. VANECH HEIGHTS CONSTRUCTION COMPANY, Inc., et al.

Supreme Court of Connecticut.

June 23, 1970.

Joseph Protter Waterbury, with whom, on the brief, was Michael J. Daly III, Waterbury, for appellants (defendants).

Kevin T. Nixon, Naugatuck, with whom, on the brief, was Michael C. Hagstrom, Naugatuck, for appellees (plaintiffs).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

SHAPIRO, Associate Justice.

This action arose out of the purchase of five single-family houses in the Quassuk Heights development in Woodbury, Connecticut, from the defendant corporation by five sets of husband and wife plaintiffs. The complaint was in two counts. The first alleged violations of certain restrictive covenants contained in the deeds to the plaintiffs from the defendant corporation and alleged nuisance in the construction and renting of apartment houses in the development in which the plaintiffs' homes were located. The second alleged that the plaintiffs were induced to purchase homes from the defendant corporation by the false representations of the defendants. The plaintiffs sought an injunction to restrain the defendants from building apartment houses in this development, and money damages.

The court found the issues with respect to the plaintiffs' claim for an injunction for the defendants. The case was submitted to the jury on the issues with respect to the plaintiffs' claim for money damages. The jury found these issues for the plaintiffs and returned a verdict for each set of plaintiffs. From this verdict and the judgment rendered thereon in favor of the plaintiffs, the defendants have appealed.

The defendant's basic claim of error is that the trial court erred in failing to grant their motion for a directed verdict and in failing to grant their motion to set the verdict aside and to order a judgment for them, because the evidence was not sufficient to support a verdict for the plaintiffs. At the trial, the two principal issues were whether, as alleged in the fraud count, the purchase of the homes by the plaintiffs from the defendant corporation had been procured by the misrepresentations of the defendants and whether, as alleged in the breach of covenant count, the defendants had broken certain covenants contained in the deeds.

The defendants contend that the plaintiffs failed to sustain their burden of proof as to the fraud count, on the ground that there was no evidence of fraud and that the plaintiffs did not produce any evidence showing damages arising from the alleged fraud. The essential elements of an action in fraud are that a false representation was made as a statement of fact; that it was untrue and was known to be untrue by the party making it; that it was made to induce the other party to act on it; and that he did so act to his injury. Helming v. Kashak, 122 Conn. 641, 642, 191 A. 525; Macri v. Torello, 105 Conn. 631, 633, 136 A. 479; Bradley v. Oviatt, 86 Conn. 63, 67, 84 A. 321. Although the general rule is that a misrepresentation must relate to an existing or past fact, there are exceptions to this rule, one of which is that a promise to do an act in the future, when coupled with a present intent not to fulfil the promise, is a false representation. Flaherty v. Schettino, 136 Conn. 222, 226, 70 A.2d 151; 37 Am.Jur.2d, Fraud and Deceit, § 45.

Interrogatories were submitted to the jury, and their response establishes that the jury found the defendants liable on the fraud count. The jury answered affirmatively an interrogatory as to whether the defendants had made 'promises and representations to the plaintiffs knowing them to be false which induced the plaintiffs to buy their homes' from the defendants. The jury could reasonably have found that the defendants represented to the plaintiffs, before they signed contracts to purchase their homes, that only one-family homes would be built on the lots in the subdivision. In support of such a finding there was evidence that several plaintiffs were shown a written list of restrictive covenants, including one which specified that each subdivision lot was restricted to a one-family dwelling unit; that an advertising pamphlet of the defendants described one-family homes and made no mention of apartment houses; that a sign on one of the subdivision lots advertised only homes; and that a map in the defendants' sales office showed only one-family homes on the subdivision lots. The jury could also reasonably have found that the defendants knew that the aforementioned representations were false. In support of such a finding there was evidence from which a reasonable inference could be drawn that the defendants had conceived the idea of building apartment houses on some of the lots in the subdivision well before the plaintiffs entered into contracts with the defendants for the purchase of homes, and that, once the defendants decided to build apartment houses, they kept their intention to do so from the plaintiffs because they anticipated that the existence of such buildings would adversely affect the sales of one-family homes. And the jury could reasonably have found that the defendants' representations induced the plaintiffs to buy homes from the defendants. In support of such a finding there was evidence that the plaintiffs would not have entered into contracts with the defendants for the purchase of homes if they had known that apartment houses would be built in the sbudivision, and there was evidence that, although the list of restrictive covenants contained a provision allowing the defendants to modify or alter these covenants, the defendants did not indicate any intention to alter or modify the one-family dwelling provision.

The jury also answered in the affirmative an interrogatory as to whether 'the plaintiffs suffered damages as a result' of false representations and promises by the defendants. The plaintiffs claimed by way of damages a diminution in the market value of their homes because of the erection of apartment houses. In support of this claim the plaintiffs offered the testimony and the detailed written report of a real estate expert. Although from the very nature of the situation the amount of loss could not be proved with exactitude, the evidence afforded a basis for a reasonable estimate by the jury of that amount. See Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 414, 144 A.2d 60; Ball v. T. J. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855.

The defendants also contend that the plaintiffs failed to sustain their burden of proof as to the count relating to the breach of the restrictive covenant. The jury affirmatively answered interrogatories as to whether the plaintiffs purchased their homes 'in reliance on the express and/or implied covenants, easements and restrictions alleged in the plaintiffs' deeds,' and as to whether the plaintiffs' premises had been depreciated in value as the result of the breach of these covenants, easements and restrictions by the defendants. The answers to these interrogatories establish that the defendants were found liable by the jury on the...