Resnik v. Morganstern

• Decision Date: 17 November 1923
• Citation: 122 A. 910,100 Conn. 38
• Court: Connecticut Supreme Court
• Parties: RESNIK v. MORGANSTERN.

122 A. 910

100 Conn. 38

RESNIK v. MORGANSTERN.

Supreme Court of Errors of Connecticut.

November 17, 1923

Appeal from Superior Court, Fairfield County; Isaac Wolfe, Judge.

Action by Isadore W. Resnik against Rosa Morganstern. From judgment of nonsuit, plaintiff appeals. Reversed, and new trial ordered.

Suit claiming a decree for a conveyance of certain real property and for damages, brought to the superior court for Fairfield county and tried to the jury before Wolfe, J.; Judgment of nonsuit rendered, and from the refusal of the trial court to set aside such judgment the plaintiff appealed.

Israel J. Cohn, of Bridgeport, for appellant.

Carl Foster, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and BEECH, CURTIS, KEELER, and KELLOGG JJ.

WHEELER, C.J.

The plaintiff offered evidence to prove these facts: The plaintiff employed one Schnee to negotiate with the defendant, the owner, for the purchase of the premises known as Nos. 1200 and 1202 Main street, Bridgeport, and Schnee with his authority engaged Leopold Weiss to secure from the defendant a contract for the sale of this property. After considerable negotiation with the defendant, Mr. Weiss reported to the plaintiff that the defendant had agreed to sell upon the following terms: She agreed to convey these premises free and clear of all incumbrance, and in consideration therefor the plaintiff agreed to pay $80,000 $3,000 at the execution of the contract, $27,000 on January 1st following, and a purchase-money mortgage for $50,000 to run for 10 years and bear 6 per cent. interest, and the further payment of $2,500 for the income tax upon this transaction. Weiss reported to the plaintiff that the defendant had agreed to the terms of the contract, but that she was coming to Bridgeport to have her attorney examine the contract, at which time, if everything was satisfactory, she would execute the contract.

Weiss was a cousin of the defendant and was advised by his son, an attorney, after he returned to Bridgeport, that the contract ought to have provided for a conveyance subject to existing leases upon the premises instead of a conveyance free of all incumbrances. He procured a contract with this provision in it and returned to the defendant at her home in Hoboken and told her of the desirability of her executing the new contract in place of the old. The defendant did not execute the new contract, but said she had come to Bridgeport and advised with her attorney as to the matter. Weiss kept possession of the executed contract until the defendant came to Bridgeport, when he delivered it to her together with the second contract, for the purpose of having her show them to her attorney, and not with the intention of surrendering the contract already executed. In fact, the terms of his agency gave him no authority to make such surrender.

Subsequently the plaintiff went to the office of defendant's attorney to meet the defendant and sign the contract (the second contract) which carried out the terms as stated to Mr. Schnee by Mr. Weiss. At this interview the defendant's attorney expressed the thought that the defendant was making a bad bargain, and when the plaintiff was unwilling to meet the defendant's demand of a price of $85,000, the parties amicably agreed that all matters relating to the negotiation should be at an end, and the defendant returned to the plaintiff two checks, one for $1,000 and one for $2,000 which had been given the defendant at the execution of the first contract in part payment of the purchase price of $80,000.

Shortly after this, Weiss told Schnee of the contract of sale which the defendant had executed, and this was the first time the plaintiff had knowledge of this. Had he known of it, he would not have agreed that the negotiations were at an end nor have accepted the checks returned by the defendant. Shortly after learning of the executed contract, the plaintiff began this action. He has at all times been ready and willing to consummate the executed contract of sale.

The plaintiff made out a prima facie case in accordance with the allegations of the complaint. This the defendant's counsel concedes. But they say the evidence introduced by the plaintiff established the fact of the rescission of this contract which the defendant had pleaded as an affirmative defense, but that this was also a necessary fact in the plaintiff's case, since he was bound to prove that this contract was in existence at the date of suit. Whether the rescission had been legally made the court held depended upon whether the plaintiff was conclusively chargeable in law with the knowledge of Weiss, his agent, of the existence of the executed contract despite his own lack of such knowledge.

The nonsuit was wrongly granted. The plaintiff had proven the essential allegations of his complaint, and under such circumstances a nonsuit could not be granted. If it were true that the evidence also established that the contract sued on had been rescinded, the court could not grant the nonsuit. Rescission is an affirmative defense, and the plaintiff is not bound to meet it in establishing his case. If this were not so, a plaintiff would be compelled to assume the burden of proving, not only his own case, but meeting the special defenses of the defendant. Fitch v. Bill, 71 Conn. 24, 29, 30, 40 A. 910; Baggish v. Offengand, 97 Conn. 312, 321, 116 A. 614.

If our rule were otherwise, we should be obliged to hold that the ground upon which the court based his decision was not sound law. The court held that although the plaintiff did not know...