Papile v. Robinson

• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Writing for the Court: KOSICKI
• Citation: Papile v. Robinson, 231 A.2d 91, 4 Conn.Cir.Ct. 307 (Conn. Cir. App. Div. 1967)
• Decision Date: 20 January 1967
• Docket Number: No. CV,CV
• Parties: John A. PAPILE et al. v. Waldo W. ROBINSON et al. 4-6407-3298.

Page 91

231 A.2d 91

4 Conn.Cir.Ct. 307

John A. PAPILE et al. v. Waldo W. ROBINSON et al.

No. CV 4-6407-3298.

Circuit Court of Connecticut, Appellate Division.

Argued Oct. 24, 1966.

Decided Jan. 20, 1967.

Thomas L. Brayton, Waterbury, for appellants (plaintiffs).

Joseph Levine, Waterbury, for appellees (defendants).

KOSICKI, Judge.

This action, founded on fraud, was tried to the court; judgment was rendered for the defendants, and the plaintiffs have appealed. The facts found, which are not subject to any correction which would benefit the plaintiffs, are as follows: On April 15, 1963, the parties entered into a written agreement for the purchase by the plaintiffs of the defendants' house and land in Wolcott, at a price of $13,600. On April 25, 1963, the property was conveyed by warranty deed. On April 7, prior to the purchase agreement, the named plaintiff, over the telephone, asked the named defendant's wife concerning heat and electric light bills and the well which supplied the house with water for domestic use. She made no representations concerning the well or water supply but requested the plaintiff to talk to her husband, who could better answer the questions and was expected home soon. The plaintiff did not call back, nor was there any other meeting or conversation thereafter concerning the well and pumping system or in regard to the problem which developed sometime after the purchase and is the subject of this action. The plaintiffs moved into their house the last day of May or the first of June, 1963. Toward the end of June, two months after the conveyance, they experienced difficulties with the well which were caused by a leak in the seal of the pump. They caused a new pump to be installed late in July, 1963, and sometime later the well, which was artesian, was drilled to a lower depth at a total expense to the plaintiffs of $1800. No repair work had been done on the well, nor was any necessary, during the period of the defendants' ownership. The defendants had occupied the property for seven years, during the last three of which they were the owners. All household uses had been supplied by the well during the defendants' occupancy of the premises, the quality of the water had been tested, and, on a few occasions, the defendants had the pump examined because it operated longer than usual.

The court concluded that there was no evidence of deceit, fraud or misrepresentation and that the plaintiffs had failed to prove the allegations of their complaint. Improperly included among the findings of subordinate facts was the conclusion that 'the testimony about the damaged pump, the contaminated water and insufficient supply on the plaintiffs' case was not supported by proof of misrepresentation, fraud, expressed or implied, and therefore, not material or competent on the pleadings.'

The assignment of errors consists of six paragraphs which we will consider in the order presented. The first claim is that the court erred in finding certain subordinate facts without evidence. We have examined the transcript and conclude that, while in certain particulars there may have been some conflict in testimony, there was credible evidence which, if believed by the court, supported the subordinate facts as found. This assignment is without merit.

In their second assignment, the plaintiffs attack the court's denial in toto of the motion to correct the finding. No reasons are assigned in that motion, with the exception of the paragraphs based on the claim of fraudulent nondisclosure, which we shall consider hereinafter. To a very large extent, the facts which the plaintiffs seek to have added to the finding were not admitted or undisputed, and there was evidence to support the facts which were found and which the plaintiffs seek to have stricken. We cannot substitute the plaintiffs' version of the facts for those found by the court. We cannot retry the case. The trier is the sole arbiter of the weight and credibility to be accorded to the testimony of the witnesses. If the trial court accepts testimony it reasonably believes to be credible, we cannot say that there was no evidence reasonably supporting the findings, and the finding cannot be disturbed. Metz v. Hvass Construction Co., 144 Conn. 535, 537, 135 A.2d 363; Grote v. A. C. Hine Co., 148 Conn. 283, 287; Zieky v. Beckerman, 112 Conn. 688, 689, 153 A. 163.

The principal issue stressed by the plaintiffs on the trial was fraud. '(F) raud is not to be presumed but must be strictly proven. The evidence must be clear, precise, and unequivocal * * *.' Basak v. Damutz, 105 Conn. 378, 382, 135 A. 453, 455; Burley v. Davis, 132 Conn. 631, 634, 46 A.2d 417; Kulukundis v. Dean Stores Holding Co., 132 Conn. 685, 689, 47 A.2d 183; Bruneau v. W. & W. Transportation Co., 138 Conn. 179, 182, 82 A.2d 923. 'Fraud and misrepresentation cannot be...