Stanio v. Berner Lohne Co., Inc.

• Decision Date: 10 January 1941
• Citation: 17 A.2d 502,127 Conn. 431
• Court: Connecticut Supreme Court
• Parties: STANIO v. BERNER LOHNE CO., Inc., et al.

17 A.2d 502

127 Conn. 431

STANIO v. BERNER LOHNE CO., Inc., et al.

Supreme Court of Errors of Connecticut.

January 10, 1941

Appeal from Superior Court, New Haven County; Edwin C. DICKENSON Judge.

Action by Gertrude B. Stanio against the Berner Lohne Company Incorporated, and others, to recover damages for alleged misrepresentations and concealment in connection with sale of realty to the plaintiff. Trial to the court resulted in judgment for defendants, and plaintiff appeals.

No error.

In purchaser's action against broker and vendor for damages for alleged fraudulent concealment with respect to boundary line of land purchased, no recovery could be had upon a claim of estoppel because " estoppel" is available only for protection, and cannot be used as a weapon of assault.

Franklin Coeller and Edward J. Brennan, both of New Haven, for appellant (plaintiff).

Lyman H. Steele, of New Haven, for appellee (defendant Merwin).

Joseph I. Sachs, of New Haven (Manuel S. Sachs, both of New Haven on the brief), for appellees (named defendant et al.).

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

AVERY Judge.

The plaintiff purchased a tract of land with a house and barn thereon, bounded northerly along the southerly highway line of Ansonia Road in Woodbridge. She brought this action against the seller, the Berner Lohne Company, and against Martin Lohne, an officer of the company, and L. Harry Merwin, a real estate broker who negotiated the sale. In her complaint, she claimed that by reason of the false representations and concealment of the defendants she had been led to believe that the northerly boundary of the property extended to the southerly visible line of Ansonia Road, as it existed at the time of the purchase, and that in fact the line of the highway was located approximately twenty-five feet southerly of the visible road line and about eight feet northerly of the front of a dwelling house on the premises. The case was tried to the court and the court has found these facts: The premises in question were part of a larger tract purchased by Fred and Charlotte M. Tattersall on July 15, 1935. The defendant Harry Merwin was the agent of the seller. On March 7, 1936, the Tattersalls conveyed to the state of Connecticut by metes and bounds strip of land along the northerly boundary of the property adjacent to Ansonia Road. The defendant Merwin, at the request of the sellers, acted as a witness to the deed, but did not read it and did not know the quantity or description of the land conveyed or the contents or provisions of the deed. This deed was recorded in the Woodbridge land records April 6, 1936. Subsequently, the state widened the road adjacent to the Tattersall property, laid a permanent pavement, changed the grade between the Tattersall house and the travelled portion of the road, built a rock garden, a retaining wall and cement steps on the land north of the house and south of the travelled portion of the road, leaving the land and road as an apparently permanent layout.

In February, 1938, Tattersall placed on the market through Merwin, his broker, the entire tract owned by him with the exception of a few lots previously sold. During the month of April, the plaintiff, acting through another real estate agent, Mrs. Warnock by name, became interested in purchasing a part of the property. She visited the premises with her husband on several occasions and was shown by Mr. Tattersall a piece which, at the request of Mrs. Warnock, he had staked out as the piece to be sold to the plaintiff. Being unable to effect a...