Rosenblatt v. Berman

• Decision Date: 29 November 1955
• Citation: Rosenblatt v. Berman, 119 A.2d 118, 143 Conn. 31 (Conn. 1955)
• Court: Connecticut Supreme Court
• Parties: Joseph ROSENBLATT v. Gertrude J. BERMAN et al. Supreme Court of Errors of Connecticut

Page 118

119 A.2d 118

143 Conn. 31

Joseph ROSENBLATT v. Gertrude J. BERMAN et al.

Supreme Court of Errors of Connecticut.

Nov. 29, 1955.

Cyril Coleman, Hartford, with whom were Edward R. Doyle, Hartford, and, on the brief, C. Duane Blinn, Hartford, for appellants (defendants).

John W. Joy, with whom, on the brief, were Hyman Holtman and Milton W. Horwitz, Hartford, for appellee (plaintiff).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and MELLITZ, Superior Court Judge.

BALDWIN, Justice.

The plaintiff brought this action alleging that the defendants, Gertrude Berman and Louis Rundbaken, acting as real estate agents, had conspired to cheat and defraud him in the sale of real estate owned by him. The case was tried to the jury. The plaintiff had a verdict for $2112.24 which the trial court, upon the defendants' motion, refused to set aside. The defendants have appealed, assigning errors in the denial of their motion and in the court's charge. With respect to the former, they make the claim, among others, that the amount of the damages fixed by the jury was not supported by the evidence. The resolution of this issue is decisive of the appeal.

The plaintiff made the following claims of proof bearing upon damages. He owned a two-family house on South Woodbine Street in Hartford which was subject to a mortgage held by the Hartford-Connecticut Trust Company. Being in need of money, he told the defendants that he wanted to sell the house for $6750. They offered to find a customer, and at Mrs. Berman's direction the plaintiff went to the officer of Apter and Nahum, attorneys in Hartford, where he executed in blank the documents necessary to accomplish a sale. Sometime later, Mrs. Berman told the plaintiff that she had a customer, and the plaintiff authorized a sale for $5750. On May 29, 1945, the property was transferred to Rundbaken and by him to Ray Rushlow. The plaintiff knew nothing of this transaction. In January, 1946, he gave a check to Julius Apter, of Apter and Nahum, upon Apter's request, for payment of a water bill of $21.90 in preparation for consummating a sale to Rushlow. The plaintiff never intended to sell his property to Rundbaken. He did not know of the details of the transaction until 1948. He received nothing from the defendants, who at all times purported to act as his agents on account of the sale. The plaintiff had great confidence in Mrs. Berman; he took her advice and did what she directed. After May 29, 1945, he did not collect any rents from the two tenants who occupied his house, and he paid nothing upon the mortgage held by the Hartford-Connecticut Trust Company on the property; he relied upon Mrs. Berman to do so. In 1946 he caused a search of the title to the made which disclosed deeds dated May 29, 1945, conveying the property first to Rundbaken and then to Rushlow, a mortgage from Rushlow to Rundbaken, and an assignment of this mortgage from Rundbaken to Mrs. Berman. Prior to May 29, 1945, the defendants, unknown to the plaintiff, had secured Rushlow as a prospective purchaser for $4750, of which $750 was to be paid in cash and the balance by a purchase money mortgage for approximately $4000. The plaintiff never received a check for $2161.27 which the defendants claimed they gave him when the property was conveyed on May 29, 1945. The defendants sold the property to themselves so that they could resell it to Rushlow for a profit of $1250, which they kept.

The defendants claimed to have proved the following facts: The defendant Gertrude Berman operated a real estate agency, and the defendant Rundbaken worked as a real estate salesman, sharing his commissions with her. In May, 1945, the plaintiff told Mrs. Berman that he was in need of cash and gave her an exclusive agency to sell his South Woodbine Street property. She advertised it for sale and secured Rushlow as a prospective purchaser for $4750, payable $750 in cash and the balance by a purchase money mortgage for $4000. When this offer was communicated to the plaintiff, he stated that he did not wish to take a purchase money mortgage but wanted cash. Rushlow could not pay more than $750 in cash. The purchase money mortgage for $4000 could not be discounted because of the poor condition and location of of the plaintiff's property. With the knowledge and approval of the plaintiff, a plan was devised to sell the property to Rundbaken as nominee for $3500, with funds to be supplied by Mrs. Berman from the estate of her minor daughter, for whom Mrs. Berman was guardian. Thereafter, the property was to be conveyed by Rundbaken to Rushlow for $4750, payable $750 in cash and the balance by the giving of a long term mortgage which would be assigned to Mrs. Berman as guardian. The plaintiff agreed to this plan. It was consummated on May 29, 1945. The plaintiff executed the necessary documents, which had been prepared previously in the office of Apter and Nahum. These included a deed to Rundbaken and a statement of adjustments which showed the payment of a mortgage for $1252.73 to the Hartford-Connecticut Trust Company, credits totaling $86 in favor of the buyer for taxes and water rates, and the payment of $2161.27 to the plaintiff. Attorney Apter gave the plaintiff a check for $2161.27, drawn on the Hartford National Bank, which was honored on June 1, 1945. On October 5, 1945, Attorney Apter advised the plaintiff by letter of an unpaid water bill for $21.90, covering a period prior to May 29, 1945, which had been overlooked and, it being understood that the adjustments were subject to subsequent correction, asked that the plaintiff send a check for this amount drawn to Rushlow. After sending seven letters without result, Julius Apter met the plaintiff in the Hartford National Bank, where the plaintiff gave him the requested check. The defendants completed the transaction in a manner which enabled the plaintiff to receive cash in the amount of $2161.27 for property which he had purchased on January 7, 1944, for $2250 by paying $600 in cash and assuming a mortgage in the amount of $1650.

In the charge to the jury respecting damages, the court pointed to the claim of the plaintiff that he had not been paid the amount of $2161.27, which represented the balance due him from the sale to Rundbaken, and instructed them that if they found this to be true, they could award him that sum with interest. The court also charged that if the jury found that the plaintiff had authorized a sale for $5750 only, he could recover this sum less the amount of the mortgage to the Hartford-Connecticut Trust Company, $1252.73, and adjustments of $86; that is, he could recover $4411.27, with interest at 6 per cent from May 29, 1945. The court also charged that if the jury found that a sale for $4750 was permitted by the plaintiff, they could deduct the $1252.73 paid on the mortgage and the $86 for adjustments and bring in a verdict for $3411.27 with interest. The court charged, further, that if the jury found that the defendants were permitted to sell the plaintiff's property for $4750 less the amount of the mortgage and the adjustments, leaving a balance of $3411.27, and the plaintiff did receive $2161.27, with the result that Mrs. Berman obtained a mortgage worth approximately $1100 (actually $1250) more than she accounted for to the plaintiff, he would be entitled to that sum with interest at 6 per cent. If the jury had followed any one of these specific instructions as to the measure of damages, they could not have arrived at a verdict in the amount which they returned.

Since no exception was taken to these instructions they stated the law governing the case with respect to the damages which could be awarded. Lengel v. New Haven Gas Light Co., 142 Conn. 70, 77, 111 A.2d 547, and cases cited. The jury were bound to follow the court's instructions and to bring in a verdict for the plaintiff consistent with them, or a verdict for the defendants. R. F. Baker Co. v. P. Ballantine & Sons, 127 Conn. 680, 684, 20 A.2d 82, 137 A.L.R. 916; Uhl v. Maiorano, 96 Conn. 683, 685, 115 A. 473; Budovsky v. Hadhazi, 95 Conn. 388, 398, 111 A. 179; see O'Brien v. Connecticut Co., 97 Conn. 419, 422, 117 A. 498. We have examined the memorandum of decision upon the motion to set aside the verdict, as we can do for a better...