Rienzo v. Cohen

• Citation: 112 Conn. 427,152 A. 394
• Court: Connecticut Supreme Court
• Decision Date: 12 December 1930
• Parties: RIENZO v. COHEN.

152 A. 394

112 Conn. 427

RIENZO v. COHEN.

Supreme Court of Errors of Connecticut.

December 12, 1930

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Action by Anna Rienzo against Jacob Cohen, for specific performance of a contract for the sale of real estate, and for other relief, tried to the court. Judgment for defendant, and plaintiff appeals.

Error and new trial ordered.

Robert J. Woodruff and Louis Shafer, both of New Haven, for appellant.

David M. Reilly, of New Haven, for appellee.

Argued before MALTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, J.

The complaint alleged that on or about November 1, 1928, the defendant executed with the owners an agreement to purchase certain land in Milford and Orange, known as the Rienzo farm and at the same time agreed to sell the same to the plaintiff upon certain terms and conditions specified in the complaint: that he thereafter purchased the premises but refuses to perform his agreement with the plaintiff. The answer admitted that the defendant did agree to purchase, and purchased, the real estate, but denied all the other allegations. Upon the trial it developed that the claimed agreement relied on by the plaintiff was in parol. She introduced evidence of continued occupancy of the premises and acts and conduct in connection there with which, she claimed, entitled her to prove the existence and terms of the alleged verbal agreement; but the court excluded evidence offered to that end. Since proof of a contract between the parties, of the nature alleged, was essential to the plaintiff's case, these rulings were decisive of the result, and the numerous assignments of error pertain thereto, either directly or indirectly.

The plaintiff offered evidence to prove, and the court has found, that the husband of the plaintiff, Luca (also known as Joseph) Rienzo, was a son of Frank Rienzo, who owned the premises in question until his death, four years before the trial, whereupon the real estate became the undivided property of Luca and his eight brothers and sisters. Luca has lived upon the premises for more than thirty years, and his wife with him from their marriage, which, was long prior to the defendant's purchase. The defendant bought the real estate from Luca and his brothers and sisters, subject to certain incumbrances, and paid each $1,000, receiving deeds from them at various dates between November 1, 1928, and April 1, 1929.

After the purchase, Luca with his wife and children remained in possession, and during the season of 1929 cultivated the farm, paying for fertilizer, seed, and labor, produced and sold vegetables and other crops, receiving the benefits therefrom, and rented one piece of land and received the rent. The appellant is entitled to have added to the finding that during August, 1929, also planting was done for certain crops which would mature the following spring. At various times after the defendant obtained title, Luca caused electric fixtures to be installed in the house, wires run and lights placed in and outside the barn to facilitate loading trucks at night, built concrete steps at the outside entrance to the cellar of the house, raised the sills of the cellar windows, and painted the kitchen. All of these things were done with the knowledge and consent of the defendant and without expense to him. So far as appears, the defendant asserted no right to possession of the premises until after the writ in this action was issued, in October, 1929.

The effect to be given to acts of part performance with respect to removal of an oral agreement from the application of the Statute of Frauds (Gen. St. 1930, § 5982), has been considered in this state repeatedly and recently. As between the two rules deducible from adjudications upon the subject of what constitutes such part performance as to take a contract out of the statute, we have adopted the more liberal-holding the acts sufficient if they are such as clearly refer to some contract in relation to the matter in dispute, the terms of which may then be established by parol-in preference to the stricter requirement prevailing in some jurisdictions, that the acts of part performance be referable to the contract set up in the complaint. Harmonie Club v. Smirnow, 106 Conn. 243, 247, 137 A. 769; Bradley v. Loveday, 98 Conn. 315, 319, 119 A. 147; Verzier v. Convard, 75 Conn. 1, 7, 52 A. 255; Van Epps v. Redfield, 69 Conn. 104, 110, 36 A. 1011; Grant v. Grant, 63 Conn. 530, 539, 29 A. 15, 38 Am.St.Rep. 379; Andrew v. Babcock, 63 Conn. 109, 122, 26 A. 715; Eaton v. Whitaker, 18 Conn. 222, 44 Am.Dec. 586.

The order of proof indicated by our-rule, and which must be followed, is that before evidence of the terms of the verbal agreement becomes admissible, there must be shown facts of such a character as to be naturally and...