Richard v. A. Waldman & Sons, Inc.

• Decision Date: 13 July 1967
• Citation: 232 A.2d 307,155 Conn. 343
• Court: Connecticut Supreme Court
• Parties: David J. RICHARD et al. v. A. WALDMAN AND SONS, INC.

Page 307

232 A.2d 307

155 Conn. 343

David J. RICHARD et al. v. A. WALDMAN AND SONS, INC.

Supreme Court of Connecticut.

July 13, 1967.

David Leventhal, Hartford, with whom was Herbert A. Krasow, Hartford, for appellant (defendant).

Waldemar J. Lach, Hartford, for appellees (plaintiffs).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

COTTER, Associate Justice.

The plaintiffs, owners of a house and lot in Vernon which they purchased from the defendant corporation, instituted an action in three counts, the first count for rescission, the second count for damages for alleged false representations in connection with the sale of land, and the third count for breach of the covenants contained in the warranty deed. The first and third counts were withdrawn at the time of trial, and the plaintiffs proceeded on the second count, obtaining a judgment for damages from which the defendant has appealed.

The parties, by written agreement, contracted for the sale and purchase of a lot together with a building then being used as a model home by the defendant, a developer of residential real estate, for sales purposes. The sales agreement was on a printed form prepared and ordinarily used by the defendant in selling residential property, and it contained a provision that the sale was subject to the zoning ordinances. Nine days after the execution of the agreement, the defendant conveyed the real estate to the plaintiffs by warranty deed containing the usual covenants against encumbrances, except those mentioned in the deed, and thereupon the plaintiffs took possession of the property.

At the time of the closing, the defendant delivered to the plaintiffs a plot plan prepared by a registered engineer and land surveyor. This plan showed a sideyard of twenty feet on the southerly boundary of the lot which was in compliance with the minimum requirements for this lot according to the zoning regulations on file with the town clerk of Vernon. A permit had previously been granted for the construction of the building, consisting of a house with an attached garage, and the survey submitted at the time the defendant made the application indicated that the structure was to be located twenty feet more or less from the southerly property line. Subsequently, a certificate of occupancy was erroneously issued based on the survey submitted by the defendant. Approximately four months after the delivery of the deed to the plaintiffs, the defendant discovered, when it set pins defining the boundaries of the premises, that the southeast corner of the foundation of the plaintiffs' house was only 1.8 feet from the southerly boundary of the lot. At this time, it was found that trespass upon adjoining property occurred in entering and leaving the plaintiffs' back door and stoop. Prior to this discovery, the parties were unaware that there was a violation of the zoning regulations as to sideyard requirements. The defendant, under a mistaken assumption, had represented by the plot plan that the structure on the lot was twenty feet from the southerly boundary. Unaware of the true fact, the plaintiffs relied on this representation.

The court councluded (1) that the defendant falsely and recklessly represented to the plaintiffs, for the purpose of inducing action, that the premises had a southerly sideyard of twenty feet and that there was no violation of the zoning regulations, and (2) that the plaintiffs were induced to rely on these representations, which were the result of a mistake on the part of the defendant but were not innocent.

The defendant claims that '(a)t most, there was an innocent misrepresentation of fact by the defendant.' An innocent misrepresentation may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. 23 Am.Jur. 920, Fraud and Deceit, § 127.

The facts, as properly found, clearly show that the plaintiffs had reasonable grounds upon which to attribute to the defendant accurate knowledge of what it represented as to the location of the structure on the lot. This was a statement of fact about which the defendant, as a developer of residential real estate, had special means of knwoledge, and it was a matter peculiarly relating to its business and one on which the plaintiffs were entitled to rely. Clark v. Haggard, 141 Conn. 668, 672, 673, 109 A.2d 358, 54 A.L.R.2d 655; 23 Am.Jur. 920, Fraud and Deceit, § 127. The defendant was commercially involved in and responsible for the preliminary and final plans for building and locating the structure which was then constructed on the lot by the defendant in a manner which violated the zoning ordinance. Thereafter, the defendant undertook to provide the plaintiffs with a survey and plot plan which erroneously showed a southerly sideyard of twenty feet. Actual knowledge of the falsity of the representation need not be shown under the circumstances, nor must the plaintiffs allege fraud or bad faith. They have alleged all the facts material to support their claim and demand for damages. It is immaterial whether the wrong which can be legally inferred from the facts arises in...