Spirt v. Albert

• Citation: 109 Conn. 292,146 A. 717
• Court: Supreme Court of Connecticut
• Decision Date: 13 June 1929
• Parties: SPIRT v. ALBERT.

146 A. 717

109 Conn. 292

SPIRT v. ALBERT.

Supreme Court of Errors of Connecticut.

June 13, 1929

Appeal from Superior Court, New Haven County; George E. Hinman and Arthur F. Ells, Judges.

Suit for an injunction against the use by the defendant of a passway to serve certain land of the defendant and for damages, and cross-complaint for the reformation of the deed of said land because of an alleged mutual mistake of the parties in omitting therefrom a grant of a right to use said passway in connection therewith, and for damages, brought to the superior court in New Haven county, where the plaintiff's demurrer to the cross-complaint and the prayer for relief thereon was overruled (Hinman, J.), and as ordered by the court (Ells, J.), the legal issues were tried to the jury and the equitable issues tried later to the court (Ells, J.). During the trial to the jury each party withdrew his claim for damages, and the sole question so tried was that on the cross-complaint of mutual mistake, as to which the jury answered two interrogatories submitted by the court.

Judgment rendered against the plaintiff on the complaint and for the defendant on the cross-complaint, and appeal by the plaintiff. No error.

John Rufus Booth, J., dissenting.

James M. Lynch, J. Gregory Lynch, and Perry Graicerstein, all of Waterbury, for appellant.

William B. Fitzgerald and Edward B. Reiley, both of Waterbury, for appellee.

Argued before WHEELER, C.J., and HAINES, BANKS, BROWN, and JOHN RUFUS BOOTH, JJ.

BROWN J. (after stating the facts as above).

The court's finding, which stands unchallenged upon this appeal, discloses that South Main street in Waterbury is one block east of and parallel to Canal street, both running in a northerly and southerly direction. For several years prior to April 15, 1919, the defendant owned three parcels of land fronting on the west side of South Main street completely covered by buildings used by the defendant in his retail furniture business and with no rear entrance, so that furniture could be brought into or taken out of the defendant's store only by the South Main street entrance. On April 17, 1919, the plaintiff acquired two parcels of land lying generally west of the defendant's land and fronting on the east side of Canal street, and a third parcel fronting on the west side of South Main street, located a short distance north of the defendant's land, which included title to a passway 174 feet in length from the street to the rear of the plaintiff's Canal street property, and also included a parcel in the rear of land of a third party fronting on South Main street, bounded northerly by the passway 58 1/2 feet, and southerly in part by land of the defendant. This tract, which had no street frontage and for which the passway afforded the sole means of access, the plaintiff by Exhibit D deeded to the defendant December 2 1922. December 31, 1923, the defendant acquired a parcel known as the " Auditorium property," next south of his land fronting on South Main street, having an entrance 32 feet wide thereon.

For nearly 20 years prior to December 2, 1922, the plaintiff and defendant had been close friends, visiting each other very frequently, and during the last two years of this period the plaintiff often urged the defendant to purchase the land described in Exhibit D, stating that if the defendant bought this of him, he would include in the deed a right of way over the entire passway between the rear of the defendant's land and South Main street, and that the right of way could be used to serve the property already owned by the defendant on South Main street, and also the Auditorium property, if the defendant should thereafter acquire it. On such occasions the parties walked over the land at the plaintiff's suggestion, when the plaintiff pointed out to the defendant the advantages of owning the Auditorium property, how it could be used, where the defendant should locate a loading platform in the rear of his buildings on South Main street, how trucks could serve this platform via the passway and the land described in Exhibit D and how the old wooden shed located between the two brick buildings on this tract should be removed to permit access by the trucks to the loading platform. This tract was of little value without a right of way to serve the defendant's other property on South Main street and the Auditorium property.

Relying upon the plaintiff's honesty and the truth of these statements and his promise to grant a right of way of the extent stated, and because thereof, about four weeks prior to December 2, 1922, the defendant agreed to purchase the tract described in Exhibit D, and paid $100 to the plaintiff on account of the purchase price thereof provided that the passway rights were to be included in the deed, so that it would serve all of the defendant's property on South Main street and also the Auditorium property if purchased. The next day on the land the plaintiff reiterated to the defendant his observations as to the use of the passway by trucks to and from the defendant's land, the location of the loading platform, and the demolition of the wooden shed to give access thereto, and thereupon the defendant had the shed torn down and the plaintiff took some of the lumber therefrom to use elsewhere. And shortly after, under the plaintiff's supervision, the defendant began the erection of the loading platform at the rear of his property fronting on South Main street. Some two days after the shed was so torn down, the defendant began to use the passway to serve the land described in Exhibit D, and thence, across that, the loading platform located as above described. This user was at the plaintiff's suggestion and was continued with his knowledge and without objection until the latter part of February, 1924; he being present to observe it almost daily in the defendant's store and on the land at the rear thereof.

Shortly after the defendant purchased the land described in Exhibit D from the plaintiff, at his suggestion and with his knowledge, the defendant had the two store entrances to his property on South Main street changed by substituting a single entrance in the middle of the front at an expense of $22,000, which no longer permitted the receipt of large crates of furniture by the entrance, and these changes were made to adapt the stores to use with the passway from the rear which the defendant was relying upon.

Between December 2, 1922, and December 31, 1923, the plaintiff repeatedly urged the defendant to purchase the Auditorium property, often going upon the land to point out to the defendant the use which could be made thereof and of the passway in connection therewith. On the latter date, the defendant, relying upon these representations, purchased this property for $42,000, and forthwith closed the entrance thereof on South Main Street, made other alterations therein at a further cost of $48,000, converting it into stores, to use in connection with his furniture business with the right of way between the rear thereof and South Main street over the land described in Exhibit D and the passway on the plaintiff's land. Without such right of way this property was of much less value.

After receiving from the defendant the $100 payment on account of the purchase price of the land described in Exhibit D, the plaintiff suggested that he would have his attorney prepare the papers, and that the defendant, who, while able to write his name, had little or no education and could not read English, need employ no attorney. The plaintiff had a deed of the land so prepared, and on December 2, 1922, took the defendant and one Hutchinson to his attorney's office, where the deed was read to Hutchinson in the hearing of the parties, whereupon Hutchinson told the attorney that it did not contain passway rights, and informed him that it should contain such rights which would serve the land described in Exhibit D, all the land the defendant then owned on South Main street, and the Auditorium property if it should be thereafter acquired by the defendant. Both parties heard Hutchinson's statement, and the plaintiff then remarked to the defendant in the Jewish language, which both understood, that that was so, that that was their agreement, and that it would be included in the deed. Thereupon the attorney inserted in the deed Exhibit D the last part of the description: " together with the right to pass and repass." In answer to the defendant's inquiry, the plaintiff assured him that what had been so inserted included passway rights to serve not only the land described in the deed, but all of the defendant's property on South Main Street and the Auditorium Property as well, whereupon the defendant paid the plaintiff the $10,000 agreed consideration.

Because of the representations of the plaintiff, and because of the mutual mistake of both the plaintiff and defendant, the deed Exhibit D failed to express what both the plaintiff and defendant intended, in that it failed to state that the right of passway which it conveyed was to serve the three parcels of land on South Main street already owned by the defendant, and the Auditorium property in the event that the defendant should thereafter acquire it, in addition to the land described in Exhibit D. At the time of the execution of the deed, both the plaintiff and defendant intended that it should contain a grant of all of these passway rights, and at that time and for nearly a year thereafter both believed that the deed as executed did in fact contain a grant of such passway rights. After the defendant had completed his alterations of the Auditorium property and had started to use it in connection with his furniture business, the plaintiff said to the defendant that he...