Tyler v. Waddingham

• Decision Date: 07 February 1890
• Citation: 20 A. 335,58 Conn. 375
• Court: Connecticut Supreme Court
• Parties: TYLER v. WADDINGHAM.

20 A. 335

58 Conn. 375

TYLER

v. WADDINGHAM.

Supreme Court of Errors of Connecticut.

Feb. 7, 1890.

Cross-appeals from superior court, New Haven county.

Simeon E. Baldwin and Talcott H. Russell, for plaintiff. Henry Stoddard, Charles K. Bush, and Charles Kleiner, for defendant.

LOOMIS, J. The record in this case as it comes to this court is unnecessarily voluminous and complicated. The complaint, as first brought to the September session, 1887, of the superior court for New Haven county, was against three defendants, namely, the West Shore Land Improvement Company, a New York corporation, having an office and doing business in Orange, in this state; Edward A. Anketell, of New Haven, as administrator of the estate of Edward L. Kimberly, late of said Orange, deceased; and Wilson Waddingham, of said Orange,—all of whom remained defendants until the 23d day of February 1888. Meanwhile sundry voluminous motions to strike out and expunge portions of the complaint were heard by the court, and in part sustained. Also sundry demurrers by the defendants to the complaint for multifariousness and misjoinder of defendants were heard and sustained by the court. After which, on the date last mentioned, the plaintiff, by written withdrawal, signed by her attorney, and made part of the record, wholly discontinued the action against all the defendants mentioned except Waddingham, and filed a new complaint, called in the record the "second amended supplemental complaint," upon which the trial proceeded against Waddingham alone. This complaint consisted of two counts. The first count sought to make Waddingham liable, either as unnamed principal or as a partner with Kimberly, to pay a note of $5,000, described in the complaint, and given by Kimberly on the purchase by him of certain real estate belonging to the plaintiff. The second count was based upon an express contract by Waddingham as guarantor for the payment of the interest on the note for $5,000, and also on another note for $30,000, given by Kimberly to the plaintiff on account of the purchase mentioned. The court found for the defendant on the first count, and for the plaintiff on the second, and both parties have appealed to this court. The facts found by the court are, in substance, as follows: In 1881, Kimberly entered into an agreement with the defendant Waddingham, by which the latter was to furnish money to procure options to purchase land (including the plaintiff's) on or near the shore of Lung Island sound, in the towns of Orange and Milford, and then, during the life of the options, to organize a corporation to take the lands at an advanced price. Waddingham was to have two-thirds and Kimberly one-third of the profits, and the former agreed to advance to Kimberly, and did so, $15,000 towards the accomplishment of said objects. The sums so advanced were to be and were deposited in a bank mutually agreed on, in the name of E. L. Kimberly, trustee. The defendant between the 6th day of September, 1881, and the 28th day of February, 1883, inclusive, at different times, advanced to Kimberly in the aggregate the sum of $45,359. of which $5,000 was paid back. The plaintiff owned a large farm, as described in the complaint, which was a part of the land the agreement between Kimberly and the defendant had reference to. Kimberly at first went to the plaintiff accompanied by a real-estate broker, to negotiate for the purchase of her farm; but, as they were not financially responsible, she refused to negotiate with them until they announced themselves as agents, and gave her to understand they were agents of a company of which the defendant was the head. Afterwards, on the 6th of October, 1881, she entered into an agreement in writing, signed by her and Kimberly, by which she agreed to convey the land to Kimberly, or his appointees, on or before March 1, 1882; and Kimberly, on his part, agreed to make payment and give security, as specified in the agreement. The price first agreed to be paid for the farm was $50,000, but afterwards, before the day for the giving of the deed, in February, 1882, by reason of Kimberly's representation made to the plaintiff that he would not be able to carry out the contract at the price first agreed, she reluctantly consented to reduce the purchase price to $40,000, and the agreement was so modified. In February, 1882, the conveyance was made to Kimberly, who made part payment in money out of the funds furnished by the defendant, and for the remainder of the purchase price executed and delivered to the plaintiff notes described in the complaint, and mortgaged the land so purchased as security for their payment to the plain tiff. In fact, the defendant did not authorize Kimberly to make any purchases of land or give notes and mortgages for such purchases, either in his name or in Kimberly's, or on account of either or both, except to the extent of the purchase of options. He was not aware that Kimberly had done more until the summer of 1882, when he was informed of the facts by Kimberly, who urged him to assist in the formation of a company, which the defendant consented to do, hoping thereby to get some of his money back. On the 28th of October, 1882, Kimberly, at the request and solicitation, of the defendant, deeded all the lands purchased by him. or the equities therein, to the West Haven Shore Land Improvement Company, and the company issued to him paid-up capital stock to the amount of nearly $800,000, being all except five shares of the capital of the company, in return for the lands; and the defendant gave Kimberly a writing stating that he was entitled to one-third interest in the profits of the lands so conveyed by him. The court also finds that, after the defendant knew that Kimberly had obtained deeds of land in his own name, he continued to loan him money to assist him, and endeavored to induce others to become interested in the scheme for the development of the lands, and tried to secure the construction of a railroad to benefit the property, but without success. Kimberly paid the interest on the plaintiff's notes to February 28, 1883, inclusive, and the defendant paid it from that time to August 28, 1886, inclusive; and since October 1, 1886, the defendant has been in exclusive possession and control of all the property in question, taking all the rents and profits. In reference to the seventh paragraph in the first count of the plaintiff's complaint, which alleged that "the plaintiff, when she accepted said notes, did not know of the nature of the agreement between Kimberly and Waddingham, and did not intend to release any claim against Waddingham," the finding is as follows: "The plaintiff testified in her deposition that when she took these notes the only knowledge she had of the nature and terms of any agreement then existing between Kimberly and Waddingham was that she 'understood they were only agents for a land improvement society, of which Waddingham was the head, and formed the responsible party;' and that she did not intend, by so doing, to release Waddingham or any other person from any claim she might have against him or them; and that, in taking the notes and mortgages, [she also took and holds a mortgage from Kimberly of a one-third interest in other property, valued at $11,400, as additional security for the $5,000 note,] she did not give exclusive credit to Kimberly, and did not consider that she in any way released any rights against Waddingham or any company that might be liable to her. On the whole evidence, however, I am of opinion, and find, that the sole influence which the understanding and belief on the part of the plaintiff that Kimberly was acting, not on his own sole and unassisted responsibility, but upon that of Mr. Waddingham, or of some company formed or to be formed in which he was interested, exerted over her, was that she was thereby convinced that the scheme would be carried through, and the notes and mortgages discharged; but I do not find that when she accepted the notes and mortgages from Kimberly she had any understanding or belief that, apart from the security upon the real estate, there was any other individual or company personally bound or liable to her for the contract price or any part thereof." The court also adds: "And upon said finding I further find the second defense to the first count true,"—which defense was as follows: "(1) The plaintiff elected to give, and did give, sole and exclusive credit to Kimberly in the transactions set up in the fifth and sixth paragraphs of said count. (2) The plaintiff accepted, in payment of the property described in plaintiff's Exhibit A, the notes of Kimberly set up in paragraph six, secured by a first mortgage from Kimberly to the plaintiff upon the property. (3) The plaintiff still holds and owns said mortgages." The plaintiff, in support of her appeal, claims that the trial court erred in its rulings in four respects: (1) In sustaining the demurrer for misjoinder of parties and causes of action. (2) In holding that the relationship of partners or principal and agent did not exist between Kimberly and the defendant. (3) In allowing Bush, the attorney, the privilege of counsel in refusing to answer certain inquiries. (4) In striking out certain paragraphs from the amended supplemental complaint.

In regard to the questions as to misjoinder, they are not properly before this court for review, for the reason that the plaintiff withdrew her case against the West Haven Shore Land Improvement Company and against the administrator of Kimberly, and filed a new complaint against the present defendant alone. The action was discontinued against the other two parties, so that it was no longer in the superior court, and therefore it could not be appealed from that court to this court. The motives for withdrawal are of no consequence. It is equally immaterial whether it was because the plaintiff thought she had no case, or because she knew the court...