Russo v. Christian

• Decision Date: 21 June 1962
• Docket Number: No. CV,CV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 23 Conn.Supp. 442 Theresa G. RUSSO v. Glenna CHRISTIAN. 5-611-42M.

Page 186

184 A.2d 186

1 Conn.Cir.Ct. 303, 23 Conn.Supp. 442

Theresa G. RUSSO v. Glenna CHRISTIAN.

No. CV 5-611-42M.

Circuit Court of Connecticut, Appellate Division.

Argued May 4, 1962.

Decided June 21, 1962.

James W. Macauley, Jr., Bridgeport, with whom, on the brief, was George A. Saden, Bridgeport, for appellant (defendant).

Jonas J. Meyer III, Bridgeport, with whom, on the brief, was Stephen J. Sedensky, Jr., Bridgeport, for appellee (plaintiff).

JACOBS, Judge.

The plaintiff sued to recover a down payment she made to the defendant on an oral agreement for the purchase of the defendant's three-family house at 87-89 Blakeman Place, Stratford. The trial court rendered judgment for the plaintiff, and the defendant has appealed.

Basically, the defendant's assignments of error are three: First, the action is predicated on an oral contract which is unenforceable because of the Statute of Frauds; second, the finding is broadly attacked; and third, the conclusions of the court cannot be supported.

We first consider the attack on the finding. The entire finding contains but seventeen paragraphs. The defendant seeks to have ten of these paragraphs eliminated and to add to the finding thirteen full paragraphs. An examination of the proposed changes and additions shows that the defendant is virtually seeking to substitute a nearly complete finding for that made by the court. No grounds whatsoever are assigned for her motion to correct the finding. See Cir.Ct. Rule 7.23; Practice Book § 392 & Form No. 561; Maltbie, Conn.App.Proc. § 173. We would be justified in refusing to give it consideration. Siller v. Philip, 107 Conn. 612, 616, 141 A. 872. However, we have given it a detailed examination. It is to a very large extent the defendant's version of the facts as opposed to the plaintiff's version. We cannot make such changes in the finding. 'The trier is the arbiter of the credibility of witnesses and the weight to be given their testimony.' Metz v. Hvass Construction Co., 144 Conn. 535, 537, 135 A.2d 363, 364. 'It is the privilege of the trier to adopt whatever testimony he reasonably believes to be credible.' Grote v. A. C. Hine Co., 148 Conn. 283, 287, 170 A.2d 138, 140. We cannot say there was no evidence reasonably supporting the findings, and they must stand. Zieky v. Beckerman, 112 Conn. 688, 689, 153 A. 163.

The facts necessary to a decision of the instant case are as follows: Early in October, 1959, in response to the defendant's advertisement in the 'Bridgeport Post' in which she listed for sale her three-family house at 87-89 Blakeman Place, Stratford, for $26,500, the plaintiff, who was then seeking income-producing property, called on the defendant, and together they made an inspection of the premises. The defendant was aware of the plaintiff's limited financial condition at their very first meeting and on all subsequent occasions. A few days later the defendant telephoned the plaintiff to inquire whether she had given the purchase further thought. In the course of this conversation, the parties reached an oral agreement of the essential terms of the bargain, one of which was that the plaintiff's obligation to buy was conditioned on her obtaining a second mortgage, of $7000, on the property. On October 22, the plaintiff offered to make a deposit of $100. The defendant insisted on a deposit of $1000 'and agreed that she would return the deposit if the plaintiff was unable to * * * obtain a second mortgage in the amount of $7,000.' On October 23, the plaintiff made the required deposit of $1000 conditioned on her obtaining secondary financing within sixty days; the defendant promised, if the plaintiff was unable to secure the loan within the time limited by the terms of the agreement, to return the deposit. The defendant then gave the plaintiff a receipt (exhibit A) as follows: 'Oct. 23, 1959. Received of Terry Russo one thousand dollars ($1,000.00) deposit on property located at 87-89 Blakeman Place, Stratford, Conn. Subject to assuming mortgage with Mechanics & Farmers Bank, with 60 days. Purchase Price $26,500. Glenna Christian.'

The plaintiff made a number of unsuccessful efforts to procure a commitment for a second mortgage loan of $7000 but 'was unable to arrange financing.' In January, 1960, she made a demand on the defendant for the return of the deposit, which was refused. The trial court concluded that the plaintiff was entitled to the return of the deposit.

The plaintiff's action is not upon a writing; it is upon an oral promise. She is not seeking the ordinary legal remedies such as a decree for specific performance or a judgment for damages for the breach of a contract based on an integrated document. The plaintiff's real object in bringing this suit was to recover her money. Raymond v. Bailey, 98 Conn. 201, 205, 118 A. 915. The defendant's liability, if any, is a personal one. Worobey v. Sibieth, 136 Conn. 352, 358, 71 A.2d 80; Fisk's Appeal, 81 Conn. 433, 439, 71 A. 559. 'A contract upon which the Legislature says that no action may be maintained cannot be used to defeat a demand otherwise legal and just.' Simons v. New Britain Trust Co., 80 Conn. 263, 267, 67 A. 883, 884; DiBlasi v. DiBlasi, 114 Conn. 539, 543, 159 A. 477; 49 Am.Jur. 843 § 541. The defense of the Statute of Frauds (General Statutes § 52-550) cannot successfully be used in this case.

The...