Seymour Water Co. v. Horischak

CourtSupreme Court of Connecticut
Citation181 A.2d 112,149 Conn. 435
Decision Date24 April 1962
PartiesThe SEYMOUR WATER COMPANY v. Paul J. HORISCHAK et al. Supreme Court of Errors of Connecticut

John L. Collins, Hartford, with whom were Cleaveland J. Rice, Jr., New Haven, and, on the brief, Charles M. Lyman, New Haven, for appellants (defendants). Charles J. Parker, New Haven, with whom, on the brief, was Peter C. Dorsey, New London, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

SHEA, Associate Justice.

The plaintiff sued to recover an alleged unpaid balance on a promissory note. In their answer, the defendants admitted the execution of the note but pleaded that they had insufficient knowledge to form a belief regarding the amount due. They also filed a counterclaim, claiming as relief (1) a cancelation of any further indebtedness under the note described in the complaint, (2) an accounting, (3) a judgment against the plaintiff for any money paid in excess of the defendants' proper liability to the plaintiff under certain contracts, and (4) such other and further relief as may pertain to equity. A demurrer to the counterclaim was sustained. The plaintiff moved for summary judgment and filed a supporting affidavit. A counter affiadvit filed by the defendants was found by the court to be insufficient to entitle them to defend, and on June 30, 1961, the court rendered summary judgment for the plaintiff on the complaint. On September 29, 1961, on motion of the plaintiff, the court rendered judgment for the plaintiff on the counterclaim because of the failure of the defendants to plead over after the demurrer to the counterclaim had been sustained. In the meantime, on September 11, 1961, the defendants had appealed from the summary judgment on the complaint. After the rendition of judgment on the counterclaim, they gave notice, under § 403 of the Practice Book, of their intention to include, in their appeal, an appeal from the judgment on the counterclaim. They then filed an amendment to their assignment of errors, claiming that the court erred in rendering judgment for the plaintiff on the complaint and on the counterclaim and in sustaining the demurrer to the counterclaim.

The principal question for determination is the correctness of the ruling on the demurrer. In the first count of the counterclaim, the defendants alleged the following facts: The defendants owned a real estate development in Seymour. They entered into a contract with the plaintiff to obtain a supply of water for the development. Another developer who owned land in the vicinity was also a party to the agreement. The contract required the construction by the plaintiff of a high-level water-main system consisting of an extension of existing water mains, a new booster-pump station and a new standpipe. The expense of the work, including the cost of the land to be bought for the booster-pump station and the standpipe, was to be initially apportioned among the plaintiff, the defendants and the other developer. Ultimately, the expense was to be borne by those who would derive benefit from the installation. The defendants agreed to advance to the plaintiff, as an aid in the construction of the system, a specified sum payable in instalments. Charges for certain new connections were specified in the contract, while charges for other types of connections were to be fixed by the parties. Out of the income derived from these new connections, the plaintiff agreed to accumulate for the developers a refund account, for which an annual accounting was to be made. Contemporanously with the execution of this first contract, the parties entered into a second contract, by which the plaintiff agreed to instal water mains in the defendants' development to provide home buyers with water obtained from the high-level system. The second contract required the defendants to advance a part of the cost of installation and to guarantee to the plaintiff a certain amount of revenue annually for ten years. Income received from customers in the development was to be applied first on the guarantee, then on the advance made by the defendants under the second contract, and thereafter on the advance made under the first contract.

The counterclaim further alleged that the note described in the complaint was executed and delivered to the plaintiff when the defendants were unable to pay the balance on the advances specified in the first contract; that at the time the contracts were made, and construction of the high-level system was then necessary to provide adequate volume and pressure of water and adequate fire protection for the plaintiff's existing customers; that the plaintiff did not disclose to the defendants the already existing need for the construction of the high-level system; that at the time the contracts were executed, the defendants understood and believed that all of the construction work described in the first contract was necessary in order to obtain water for their own development and that none of the work was designed for the benefit of anyone else; that the plaintiff knew or should have known from the course of business dealings between the parties that the defendants had this belief and understanding, but the plaintiff did nothing to advise the defendants of the existing and true facts; that the construction of the high-level system was an obligation resting exclusively on the plaintiff and therefore it was required to invest all the necessary capital to provide existing customers with adequate service; that, had the defendants known the true state of facts, they would not have executed the first contract as drafted but would have limited the...

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6 cases
  • Fellows v. Martin, 14055
    • United States
    • Supreme Court of Connecticut
    • 1 d2 Janeiro d2 1991
    ...... Seymour Water Co. v. Horischak, 149 Conn. 435, 442, 181 A.2d 112 (1962). . IV .         " 'Equity ......
  • Pasquariello v. Pasquariello
    • United States
    • Supreme Court of Connecticut
    • 17 d2 Junho d2 1975
    ...§ 14.8. Equity jurisdiction once obtained will be retained for the purpose of administering complete relief. Seymour Water Co. v. Horischak, 149 Conn. 435, 442, 181 A.2d 112; Clipfel v. Kantrowitz, 143 Conn. 184, 188, 120 A.2d 416. Other courts, guided by a statutory standard of fairness an......
  • Pawlinski v. Allstate Ins. Co.
    • United States
    • Supreme Court of Connecticut
    • 2 d3 Maio d3 1973
    ...by fraud or misrepresentation and thus affected the weight and efficacy of the plaintiff's evidence. See, e.g., Seymour Water Co. v. Horischak, 149 Conn. 435, 442, 181 A.2d 112; Rodie v. National Surety Corporation, 143 Conn. 66, 69, 118 A.2d 908. It sought to prove facts which were inconsi......
  • State v. American News Co.
    • United States
    • Supreme Court of Connecticut
    • 16 d2 Junho d2 1964
    ...the agreement may be reformed.' Rodie v. National Surety Corporation, 143 Conn. 66, 69, 118 A.2d 908, 909; Seymour Water Co. v. Horischak, 149 Conn. 435, 442, 181 A.2d 112. The defendant does not contend that there was any mutual mistake involved in the contract of January 12, 1956; no evid......
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