Shelton Yacht & Cabana Club, Inc. v. Suto

• Decision Date: 15 January 1963
• Citation: Shelton Yacht & Cabana Club, Inc. v. Suto, 188 A.2d 493, 150 Conn. 251 (Conn. 1963)
• Court: Connecticut Supreme Court
• Parties: SHELTON YACHT AND CABANA CLUB, INC., et al. v. Frank C. SUTO et al. H. Glen CHAFFER et al. v. Blanche ZUCKERMAN et al. Supreme Court of Errors of Connecticut

Page 493

188 A.2d 493

150 Conn. 251

SHELTON YACHT AND CABANA CLUB, INC., et al. v. Frank C. SUTO et al.

H. Glen CHAFFER et al. v. Blanche ZUCKERMAN et al.

Supreme Court of Errors of Connecticut.

Jan. 15, 1963.

Thomas B. Coughlin, Bridgeport, for appellants (plaintiffs in the first case and defendants in the second).

Raymond C. Lyddy, Bridgeport, for appellees (defendants in the first case and plaintiffs in the second).

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

KING, Associate Justice.

These two cases were tried together and are here on a combined appeal. In the Shelton case, in which damages were sought for the breach of three written contracts, the court concluded that the plaintiffs had failed to sustain their burden of proof by the more credible evidence and that consequently judgment must be, as it was, rendered for the defendants. Although the plaintiffs in that case appealed, they filed no assignment of errors attacking these conclusions. The plaintiffs in the Shelton case are among the defendants-appellants in the Chaffer case, and the record is in some confusion because the appellants in both cases employed a single assignment of errors for appeals in the two wholly separate cases. We find no effective assignments of error properly directed to the Shelton case, and the appeal in that case will not be further discussed. Practice Book § 409; H. Duys & Co., Inc. v. Tone, 125 Conn. 300, 312, 5 A.2d 23; Maltbie, Conn.App.Proc. § 167.

There is left for consideration only the appeal in the case in which H. Glen Chaffer, Frank C. Suto and the company operated by them, Heritage Advertising Agency, Inc., hereinafter referred to as Heritage, brought suit against Blanche Zuckerman and two companies operated by her under the names of the Pinecrest Country Club, Inc., hereinafter referred to as Pinecrest, and the Shelton Yacht and Cabana Club, Inc., hereinafter referred to as Shelton. The original complaint was in three counts, but during the course of the trial a fourth count was added. Judgment was rendered for the defendants on all counts except the first. In the first count, which involved only the plaintiff Heritage and the defendant Blanche Zuckerman, it was alleged that Blanche retained Heritage for the purpose of promoting and advertising the formation of Pinecrest, which was to be a country club; that two other agreements were made by Heritage and Blanche, one concerning the exclusive right to sell memberships in Pinecrest and the other concerning the sale of memberships in Shelton; and that, in reliance on those agreements, Heritage proceeded to advertise both organizations and in so doing incurred expenses and obligations the fair value of which was approximately $10,500, an amount which Blanche refused to pay. On this first count, judgment was rendered in favor of Heritage for $9,409.63.

Error was assigned in certain evidential rulings. Some of them were not pursued in the brief of Blanche Zuckerman, hereinafter referred to as the defendant, and must be treated as abandoned. Yale University v. Benneson, 147 Conn. 254, 255, 159 A.2d 169; Maltbie, op. cit. § 327. The assignments pursued in the brief involve claims under the parol evidence rule, and these we now consider.

Evidence relating to unwritten negotiations and agreements was admitted over the objection of the defendant that all preceding unwritten agreements were completely integrated in three written contracts and that the evidence objected to was inadmissible because it was in violation of the parol evidence rule. Under that rule, if a written contract is found to be the final repository of agreements made between the parties, evidence of a prior unwritten agreement would not be allowed to have any effect on the agreement as integrated in the writing. Harris v. Clinton, 142 Conn. 204, 210, 112 A.2d 885; Jarvis v. Cunliffe, 140 Conn. 297, 299, 99 A.2d 126; 3 Corbin, Contracts § 573. The parol evidence rule is a rule of substantive law rather than a rule of evidence, and the essence of an objection under it is that even if the evidence objected to is admitted, it would be ineffective, and thus immaterial, because it could not legally affect the rights of the parties as defined in the writing. Nagel v. Modern Investment Corporation, 132 Conn. 698, 700, 46 A.2d 605. Whether the written contract was actually the final repository of the oral agreements and dealings between the parties depends on their intention, evidence as to which is sought in the conduct and language of the parties and the surrounding circumstances. If the evidence leads to the conclusion that the parties intended the written contracts to contain the whole agreement, evidence of oral agreements is 'excluded,' that is, excluded from consideration in the determination of the rights and obligations of the litigants, even though it is admitted on the issue of their intention. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851, 70 A.L.R. 740. Ordinarily, if not invariably, evidence of the intention will include evidence as to the content of the oral negotiations. 9 Wigmore, Evidence (3d Ed.) p. 98.

Error was assigned in certain rulings of the court admitting testimony as to the oral negotiations. Insofar as the rulings were attacked in the brief, they involved the admission of evidence relevant to the crucial question of intention, and consequently were not erroneous.

There remain for review the findings and conclusions of the court below. The assignments of error seeking some nineteen additions to the finding avail the defendant nothing, since in her brief she fails to point out anything which shows that any of the facts sought to be added were admitted or undisputed. Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634. Of some nineteen deletions from the finding sought in the assignments of error, only four are material to the determination of this appeal. No mention is made of any of the four in the appellant's brief, and consequently the appellee, Heritage, was entitled, as it obviously did, to treat them as abandoned. Martino v. Grace-New Haven Community Hospital, 146 Conn. 735, 736, 148 A.2d 259. This abandonment in turn absolved the appellee from the necessity of complying with the requirements otherwise resting on it under § 447 of the Practice Book, as explained in cases such as Cushing v. Salmon, 148 Conn. 631, 632, 173 A.2d 543 and Engelke v. Wheatley, 148 Conn. 398, 411, 171 A.2d 402. Kielb v. Weinberg Realty Corporation, 147 Conn. 677, 680, 165 A.2d 601. It follows that none of the corrections of the finding sought can be made.

The material portions of the finding will now be summarized. On or about June 1 1956, H. Glen Chaffer and Frank C. Suto, who were the principal stockholders of Heritage, were introduced to the defendant. Heritage was a corporation engaged in merchandise and product advertising in the Bridgeport area. The defendant stated that she was interested in some property for possible use as a shopping center. Later, she thought that a country club would be more appropriate. Heritage was authorized to take all the steps necessary to advertise the proposed country club through any advertising medium available and to incur expenses and financial obligations in connection with the advertising. All of the expenses and obligations were to be paid by the defendant. Between June 1, 1956, and May 1, 1957, Heritage performed services for the defendant, by planning the layout of Pinecrest, advertising the club in various advertising media and securing the services of tradesmen to construct the planned facilities. Much of the work being done was in Heritage's usual line of business as an advertising agency, and there was evidence that it was not customary for the parties to...