Skorpios Properties, Ltd. v. Waage

• Decision Date: 28 December 1976
• Citation: Skorpios Properties, Ltd. v. Waage, 172 Conn. 152, 374 A.2d 165 (Conn. 1976)
• Court: Connecticut Supreme Court
• Parties: SKORPIOS PROPERTIES, LTD. v. John C. WAAGE et al.

Page 165

374 A.2d 165

172 Conn. 152

SKORPIOS PROPERTIES, LTD. v.John C. WAAGE et al.

Supreme Court of Connecticut.

Argued Oct. 7, 1976.

Decided Dec. 28, 1976.

Melvin J. Silverman, Norwalk, for appellant(plaintiff).

Richard M. Gordon, Stamford, with whom was Robert J. Wolfe, Danbury, for appellee(defendantOlive Waage).

Before HOUSE, C. J., and COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.

COTTER, Associate Justice.

The plaintiff brought this action asking $1,100,000 in damages from the defendants, one of whom, Olive Waage, demurred to the plaintiff's prayer for relief "because on the facts stated, the plaintiff is not entitled to such relief for the reason that Connecticut General Statutes, Section 49-8 provides (that) the exclusive remedy available to the plaintiff shall not exceed One Thousand ($1,000.00) Dollars damages."The trial court sustained the demurrer, the plaintiff failed to plead over, and judgment was rendered in favor of that defendant.The plaintiff has appealed from the judgment.

The complaint alleges in substance that in January, 1973, the plaintiff purchased property from the defendants, who took back a $284,000 purchase money mortgage for part of the consideration.The mortgage specifically provided for a partial release thereof to be issued, with other provisions not presently relevant, upon the same ratio of land to the total acreage as payments made against the original purchase price bear to that purchase price.In October 1974, the plaintiff contracted to sell a portion of the land, in a contract in which time was of the essence, and requested a release in accordance with the mortgage provisions, and such a release was refused.The plaintiff then notified the defendants of its contract by letters and telegraph, but the defendants refused to release the acreage as required by the mortgage.As a result of the defendants' refusal, the plaintiff's contract to sell was cancelled; it lost a highly favorable sale.

We have held on numerous occasions that a demurrer tests whether the allegations of a complaint state a good cause of action, that the complaint must be construed in a manner most favorable to the pleader and if facts provable under the allegations would support a cause of action the demurrer must fail.Covino v. Pfeffer, 160 Conn. 212, 214, 276 A.2d 895.

The question presented, then, is whether § 49-8 of the General Statutes, ¹ printed in the footnote, provides the exclusive remedy available to the plaintiff.

Whether the statutory remedy of § 49-8 is exclusive or merely cumulative depends primarily upon the expressed intent of the legislature, and, in construing the language of the statute, the application of common sense, the circumstances surrounding its enactment, and the objective it seeks to accomplish, are not to be excluded.Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 46, 301 A.2d 244;seeUnited Aircraft Corporation v. Fusari, 163 Conn. 401, 410-11, 311 A.2d 65;73 Am.Jur.2d, Statutes, § 145.However, "(c) ourts cannot import into legislation an intent not expressed in some appropriate manner."Loew v. Falsey, 144 Conn. 67, 72, 127 A.2d 67, 69;82 C.J.S.Statutes, § 321.

Prior to § 49-8, which in its original form was enacted in 1869, ² a mortgagor such as the plaintiff would have had a common-law cause of action in the nature of a breach of contract based upon his covenant or agreement contained in the mortgage.Dugan v. Grzybowski, 165 Conn. 173, 176, 332 A.2d 97;Valente v. Affinito, 118 Conn. 581, 584-85, 173 A. 235;Abbe v. Goodwin, 7 Conn. 377, 384."The General Assembly, and those who frame its legislation, must always be presumed to be familiar with settled rules of statutory construction and the interpretation the courts have placed upon legislation which has been enacted.(Citations omitted.)"State ex rel. Butera v. Lombardi, 146 Conn. 299, 305, 150 A.2d 309, 311.In this case, the settled rule is that " 'a statute which creates a new remedy for a right already existing under the common law is generally directory only, and does not preclude the use of existing common law remedies.'3 Sutherland, Statutory Construction (3d Ed.) § 5812, p. 95."Krulikowski v. Polycast Corporation, 153 Conn. 661, 667, 220 A.2d 444, 448;see also1 Am.Jur.2d, Actions, § 76;Hartford & N. H. R. Co. v. Kennedy, 12 Conn. 499.

A statute should not be construed as altering the common-law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express.Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691;seeShaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892;82 C.J.S.Statutes§ 393.Section 49-8 upon its enactment provided a new, affirmative remedy, and contained no express or implied intention to abrogate or supersede the common-law remedy available to the plaintiff; it was an additional, but not an exclusive, remedy.SeeWakelee v. DeSanto, 152 Conn. 44, 46-47, 202 A.2d 833;see also1 C.J.S.Actions§ 6.We cannot conclude that whatever common-law remedy the plaintiff had, under any circumstances, should be abrogated because of the language of the statute.Nelson v. Steffens, Conn., 365 A.2d 1174(37 Conn.L.J., No. 38, pp. 12, 13);seeNolan v. Morelli, 154 Conn. 432, 226 A.2d 383.

There is error, the judgment is set aside and the case is...