Shelinsky v. Foster

• Decision Date: 13 June 1913
• Citation: 87 Conn. 90,87 A. 35
• Court: Connecticut Supreme Court
• Parties: SHELINSKY v. FOSTER et al.

87 A. 35

87 Conn. 90

SHELINSKY

v. FOSTER et al.

Supreme Court of Errors of Connecticut.

June 13, 1913.

Appeal from Superior Court, Fairfield County; Lucien F. Burpee, Judge.

Action by Abraham Shelinsky against John E. Foster, Charles H. Peck, and others. Judgment for the defendants, and plaintiff appeals. Affirmed as to defendant Charles H. Peck, and reversed as to the other defendants, with directions to enter judgment for the plaintiff.

Action claiming equitable relief in the nature of specific performance of an agreement for the sale of real estate, facts found, and judgment rendered in favor of the defendants, and appeal by the plaintiff. Error in part.

The material facts found are as follows: On February 16, 1910, the defendant Foster orally agreed with the plaintiff to sell to him a piece of land on Atlantic street in Bridgeport, 100 feet front and 125 feet deep, for the sum of $3,000, and the plaintiff thereupon paid Foster $25 on account of said purchase price and agreed to pay the balance within 10 days. On the same day the said Foster signed and delivered to the plaintiff a memorandum of said agreement in the words and figures following: "Bridgeport, Conn., February 16th, 1910. Received of Abraham Shelinsky twenty-five dollars on account of purchase price of lot on Atlantic Street, 100 feet front by 125 feet deep. The full amount of purchase price to be three thousand dollars. Balance to be paid within ten days from date. John E. Foster." The plaintiff did not pay the balance of the purchase price, or any part thereof, within 10 days from the date of the memorandum, or do anything towards the performance of the agreement. On February 28, 1910, the plaintiff called upon the defendant Foster, and requested him to carry out the agreement expressed in the memorandum. Foster refused, because the time for the payment of the balance of the purchase price had expired. The plaintiff then requested Foster to make a new agreement with him. Foster refused to make any new agreement until he had consulted his attorney, the defendant Peck. Thereupon the plaintiff and the defendant Foster went to Peck's office and the plaintiff produced and surrendered to Peck the memorandum of February 16, 1910. Thereupon it was orally agreed by the plaintiff and Foster that the plaintiff would buy a portion of Foster's said land having a front on Atlantic street of 100 feet and a depth of 115 feet, subject to certain conditions relating to certain uses and easements; that the plaintiff should pay said Foster at once the sum of $300, including therein $25 paid February 16, 1910, and the balance, $2,700, within three months, with interest from date; that Foster should at once execute a deed of said land to the plaintiff, and leave the same in the possession of Peck as Foster's attorney; and that, if the plaintiff within 90 days from date should pay to Peck said balance of $2,700 with interest, Peck should deliver said deed to the plaintiff.

After this oral agreement had been made, the plaintiff paid said Foster $275, the defendant Peck drew up a deed of the land, the defendant Foster executed the same and left it in the hands of Peck, to be by him delivered to the plaintiff when called for according to the terms of said oral agreement. Thereupon, at the plaintiff's request, Peck, acting as a duly authorized attorney of Foster, signed and delivered to the plaintiff a writing, a copy of which is attached to the complaint and marked "Plaintiff's Exhibit A," and which is as follows: "Bridgeport, February 28th, 1910. This is to certify that I have received from John E. Foster, of Bridgeport, a deed to land on Atlantic street in said Bridgeport. That said deed is to be delivered to Abraham Shelinsky on the payment to me of the sum of two thousand seven hundred dollars with interest from this date. That said payment is to be made within three months from this date. [Signed] Charles H. Peck." No other deed to the plaintiff was ever made by Foster. On or before March 8, 1910, the defendant Bryant bought the said land of Foster, being the same land described in the deed of February 28, 1910, and subject to the same conditions and restrictions expressed in said deed to the plaintiff, and received from Foster a deed thereof, which he caused to be duly recorded. Bryant at the time of taking this conveyance knew that Foster had contracted to sell the land to the plaintiff, and bought the land for the purpose of preventing the plaintiff from obtaining any title therein, and for the purpose of preventing the plaintiff from acquiring and using said land in the manner in which he intended to use it. On March 9, 1910, the plaintiff tendered to Peck and Foster, $2,700, with interest, and demanded the delivery of said deed to him, but delivery was refused.

William H. Comley, Jr., and Henry E. Shannon, both of Bridgeport, for appellant.

Robert E. De Forest and Jacob B. Klein, both of Bridgeport, for appellees.

BENNETT, J. (after stating the facts as above). Upon the trial of this case, and at the close of the testimony, the plaintiff's counsel moved to be permitted again to amend his amended complaint by setting out the true memorandum of February 16, 1910, and the oral agreement claimed to have been made on February 28, 1910, in the office of the defendant Peck. The case had been pending in court more than two years, and the complaint had been repeatedly amended. Leave to amend was denied. This ruling was fully within the discretion of the court. Bristol v. Pitchard, 81 Conn. 451, 71 Atl. 558.

The plaintiff alleged in his complaint, and offered evidence to prove, that the deed of February 28, 1910, executed by the defendant Foster, and left by him in the hands of the defendant Peck, was delivered in escrow. The court has found that the deed was left by Foster in the hands of Peck as his, Foster's, attorney. This is equivalent to a finding that the deed was not delivered in escrow. Grilley v. Atkins, 78 Conn. 380, 387, 62 Atl. 337, 4 L. R. A. (N. S.) 816, 112 Am. St. Rep. 152; Day v. Lacasse, 85 Me. 242, 27 Atl. 124. The plaintiff does not question this conclusion, but has made a motion for a correction of the finding in this respect, which motion was denied in the trial court, and exception taken to this ruling. We have examined the evidence certified, and find no reason to change the finding.

The superior court held that there was a material variance between the allegations of the complaint and the plaintiff's proof. It appears from the facts found that the plaintiff and Foster on the 16th of February, 1910, entered into an oral agreement for the sale by Foster to the plaintiff of a lot of laud 100 feet front and 125 feet deep, and that on the same day Foster executed and delivered to the plaintiff a memorandum of said agreement. It also appears that the parties afterwards, on the 28th day of February, 1910, entered into another and different oral agreement for a sale by Foster to the plaintiff of a part of the lot contracted for on ...