Santangelo v. Middlesex Theatre, Inc.

• Court: Connecticut Supreme Court
• Writing for the Court: AVERY, Judge.
• Citation: Santangelo v. Middlesex Theatre, Inc., 125 Conn. 572, 7 A.2d 430 (Conn. 1939)
• Decision Date: 26 June 1939
• Parties: SANTANGELO v. MIDDLESEX THEATRE, Inc., et al.

7 A.2d 430

125 Conn. 572

SANTANGELO v. MIDDLESEX THEATRE, Inc., et al.

Supreme Court of Errors of Connecticut.

June 26, 1939

Appeal from Superior Court, Middlesex County; Earnst A. Inglis Judge.

Action by Leo B. Santangelo against the Middlesex Theatre, Inc., and another to recover a commission for sale of realty. Judgment for plaintiff after trial to the court, and defendants appeal.

No error.

Herman M. Levy, Samuel H. Platcow, and Marshall Banever, all of New Haven, for appellants.

Thomas C. Flood, of Portland, for appellee.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

This action was brought by the plaintiff, a real estate broker, to recover a commission claimed to be due him for his efforts in an attempt to sell property of the defendants. The case was tried to the court and judgment rendered for the plaintiff from which the defendants appealed. The essential facts appearing in the finding, with such corrections as the defendants are entitled to, are these: On March 9, 1937 following previous correspondence, the defendants, acting by Frank Arrigoni, who was president and agent for both corporations and duly authorized, gave to the plaintiff, a real estate broker, in writing the sole agency for one week to sell defendants' property, known as the Middlesex Theatre and the Middlesex Mutual Building in Middletown. The price was $150,000, $5000 to be deposited by the purchaser, who was to be given six months in which to complete the transaction, $20,000 additional payable in cash at the time of the conveyance, the assumption of the first mortgage upon the property or the negotiation of a new one for the same amount and the giving back of a second mortgage for the remainder of the purchase price. Arrigoni had previously informed the plaintiff that the commission would be 3 per cent. on the $5000 deposited as an option, and, if the purchase was fully consummated, $3000. On the same day the plaintiff gave to Salvatore Adorno a writing purporting to grant to him an option for five days from March 9, 1937, to purchase an option upon the real estate upon the terms agreed upon between the plaintiff and defendants. No consideration was paid for this writing. On the day following, March 10th, Joseph Adorno, son of Salvatore, knowing that his father was considering the purchase, with the latter's knowledge, proposed to Franklyn Arrigoni, son of Frank, that the two young men in partnership or in a corporation purchase the property. On the evening of the same day the two young men talked with Frank Arrigoni and he verbally agreed with them to sell the option to them on the terms set forth in the agency agreement with the plaintiff, with the secret agreement that he would shade the purchase price to the young men by the amount of $5000. Pursuant to the verbal understanding, on the afternoon of the day following, Franklyn Arrigoni, Joseph Adorno and the plaintiff met in Frank Arrigoni's office, and acting under the direction of the latter, the plaintiff accepted $5000 from Franklyn Arrigoni and Joseph Adorno and gave them a receipt, which in effect granted them the option which the agency agreement of March 9th authorized him to grant.

Subsequently, on March 11th or 12th, a dispute arose between the young men as to the respective interests which each should have in the property. Franklyn Arrigoni on the advice of his father insisted on having a 51 per cent. interest and Joseph Adorno insisted that each should have a 50 per cent. interest. On the evening of March 12th, Frank Arrigoni having been informed that the young men were at an impasse in their dispute, telephoned the plaintiff that the deal with the ‘ boys' was off, but the defendants would be willing to pay his commission of $3000, provided he would accept it in instalments of $500 each over a long period of time. In the course of this conversation Frank Arrigoni was informed by the plaintiff that he had started negotiations with Salvatore Adorno and given the latter a five day option, and the plaintiff requested Arrigoni to come in and see him the following morning. The latter made no reply and did not call as requested. When the telephone conversation was finished, Salvatore delivered to the plaintiff a writing dated March 12th, signed by him notifying the plaintiff that Salvatore exercised the option given him in writing March 9th. No money was paid at that time but on March 13th, Salvatore paid the plaintiff the sum of $500 in cash and took from him a receipt which was given and accepted upon the verbal agreement between the plaintiff and Salvatore that it was on condition that the option to Franklyn Arrigoni and Joseph Adorno should not be exercised. On March 15th, the plaintiff notified the defendants that he had received two cash deposits from two different parties but that the last deposit was accepted on condition that the first option was not exercised and that it was reasonably certain that one or the other of the parties would be ready to close the transaction in accordance with the terms of the option given to the plaintiff by the defendants.

On April 7th, the defendants through their attorneys notified the plaintiff that the agency agreement of March 9th, did not authorize him to grant any conditional option or accept a deposit on that basis. On May 3d, Joseph Adorno alone endeavored to exercise the option granted to him and Franklyn Arrigoni and himself offered to perform the terms of the agreement. Franklyn Arrigoni refused to join in the offer which was declined by the defendants. Later the defendants were threatened with suit upon this agreement. On September 2, 1937, and prior to the expiration of the agreement made by the plaintiff with Joseph Adorno and Franklyn Arrigoni, the plaintiff and Salvatore Adorno called at the office of the defendants, tendered $20,000 in cash, and offered to carry out in full the terms of the option entered into with Salvatore Adorno. This offer was not accepted. On March 11, 1938, the plaintiff made demand on the defendants for his commission based upon the transaction with Salvatore Adorno.

The defendants have asked for numerous corrections and additions to the finding but no correction is permissible by which the position of the defendants will be materially advantaged.

In their brief, the defendants state the other principal issues involved in this appeal to be: (1) Whether the trial court erred in concluding that the plaintiff's agency was not revoked, (2) in holding that the plaintiff was authorized to grant a conditional option and, (3) that the option granted to Salvatore Adorno constituted a conditional option, (4) in concluding that the plaintiff did not violate his duty to his principal, (5) whether there was a material variance between the allegation and the proof, and (6) whether the trial court erred in certain rulings on evidence. These questions for the most part do not reach the real point of the case. The...