Swayne v. Felici

• Decision Date: 08 March 1911
• Citation: Swayne v. Felici, 79 A. 62, 84 Conn. 147 (Conn. 1911)
• Parties: SWAYNE v. FELICI et al.
• Court: Connecticut Supreme Court

79 A. 62

84 Conn. 147

SWAYNE

v. FELICI et al.

Supreme Court of Errors of Connecticut.

March 8, 1911.

Appeal from City Court of New Haven; Albert McC.Mathewson, Judge.

Action by Walter S. Swayne against Giovanni Felici and others to recover rent under a written lease, damages for waste, and for breach of a contract to cultivate trees Verdict for defendants, and plaintiff ap peals.Reversed.

Ward Church, for appellant.

Robert C. Stoddard, for appellees.

HALL, C. J.The complaint in this action, dated February 1, 1900, contains three counts.The first alleges that, under a written lease to the defendants of the premises in question for the term of five years from November 1, 1904, for the annual rent of $300, payable in semiannual payments of $150 in advance, there became due the plaintiff on the 1st of November, 1905, the sum of $150, which has not been paid.The second, that in violation of the covenants of the lease the defendants committed certain acts of waste, and by their abandonment of the leased premises, at the end of the first year of the term, caused the same to be damaged and injured.The third, that the defendants failed to cultivate certain trees in accordance with the covenants of the lease.The complaint asks for $1,000 damages.

One of the answers to all the counts alleges, in substance, that the plaintiff fraudulently procured the defendants to execute the lease in question by representing to them that he would build a dwelling house and dig a well upon the premises for the use of the defendants, and would incorporate such agreement in the written lease to be prepared, and by falsely and fraudulently stating to the defendants, who were ignorant and unable to read English, that such a provision was incorporated in the written lease which they signed; that the plaintiff refused to build the house and dig the well, and thereby prevented the defendants from using or occupying the premises, and compelled them to abandon them, which they did after due notice to the plaintiff.The reply denies the allegations of fraud.

The errors assigned are rulings upon questions of evidence and certain language of the charge.The former call for but a brief notice.

The plaintiff's witness H. C. Smith should have been permitted to testify that the proper method of growing peach trees was to cultivate between the trees.This, it is alleged, the defendants had covenanted to do, and the evidence offered tended to support the plaintiff's claim for damage for the breach of that covenant.

The testimony received of the defendant Ferrucci, that the plaintiff orally promised to build a house and dig a well, was inadmissible for the purpose of proving such a promise of the plaintiff as constituting in itself a defense, or of proving any agreement of the parties respecting the defendants' occupation of the premises, or the conditions under which the defendants were to pay the rent...