Ubysz v. DiPietro

• Decision Date: 28 July 1981
• Citation: 185 Conn. 47,440 A.2d 830
• Court: Connecticut Supreme Court
• Parties: Alexander UBYSZ et al. v. Anthony DiPIETRO, Administrator (ESTATE of Josephine DiPIETRO).

Page 830

440 A.2d 830

185 Conn. 47

Alexander UBYSZ et al. v. Anthony DiPIETRO, Administrator (ESTATE of Josephine DiPIETRO).

Supreme Court of Connecticut.

Argued March 10, 1981.

Decided July 28, 1981.

Thomas P. Tabellione, New Britain, for appellant (defendant).

James M. Marinelli, New Britain, with whom, on the brief, were James Kelly, Dworski, Shurberg & Marinelli, New Britain, and Maureen Chmielecki, Manchester, for appellees (plaintiffs).

Before BOGDANSKI, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiffs brought this action after the defendant administrator of the decedent's estate disallowed their proof of claim against the estate. The plaintiffs sought, in the first count of their complaint, a conveyance of the premises located at 96 Belmont Street, New Britain. In the second count, they sought the reasonable value of services rendered. Written interrogatories were submitted to the jury who found in favor of the plaintiffs on the first count of the complaint. Following the denial of his motions to set aside the verdict and for a directed verdict, the defendant has appealed from the judgment ordering him to convey the premises to the plaintiff.

The jury could reasonably have found the following facts: On March 19, 1978, the decedent, Josephine DiPietro, died intestate. The decedent's eldest daughter, Lucille Ubysz, and Lucille's husband, Alexander Ubysz, are the plaintiffs. Lucille's brother, Anthony DiPietro, who is the administrator of the decedent's estate, is the named defendant.

Before Josephine died in 1978, and before her husband Emmanuel DiPietro died in 1976, they lived in a single family home, owned by Emmanuel, at 96 Belmont Street in New Britain. Their daughter Lucille, at the time of the trial, had lived in the house for fifty years. Since 1953, Lucille and her husband had lived in a converted apartment in the house.

The plaintiffs' converted apartment consisted of five small rooms and one bath. One of the rooms was used as a closet. Since there were no conventional heating facilities in the apartment, the plaintiffs heated their apartment solely by the kitchen stove. Lucille's parents, Josephine and Emmanuel, lived downstairs. Since there was no bath or shower on this floor, they shared the upstairs bath.

By 1959, the plaintiffs had three children. The growing needs of the family brought about their decision, in 1961, to move from the house. In February of that year, the plaintiffs informed Emmanuel that the demands of their growing family required more space and, as a result, they intended to move from the apartment. Emmanuel asked the plaintiffs to remain at the house because he said that he and his wife could not maintain the premises without the plaintiffs' aid. At that time, Emmanuel was in poor health; he suffered from glaucoma and a heart condition which made it impossible for him to drive a car and difficult for him to do many physical chores around the house. In return for the plaintiffs' assistance, Emmanuel promised the plaintiffs that the house on Belmont Street would be devised to the plaintiffs upon the death of the survivor of himself and his wife Josephine.

Shortly after she spoke with her father, Lucille discussed the matter with her mother. Josephine agreed that if the plaintiffs stayed, upon the death of the survivor of herself and her husband, the house would be devised to the plaintiffs.

The plaintiffs remained at 96 Belmont Street, paid rent, and assisted Josephine and Emmanuel not only in maintaining the premises, but also by adding improvements to the property. They also performed many everyday routine jobs, including doing much of the driving for Emmanuel. Except for three brief vacations consisting of three or four days each, the plaintiffs were continually at the premises between 1961 and 1978.

In 1976, Emmanuel died intestate. With the cooperation of the DiPietro children, Josephine became the sole owner of the property. Shortly after Emmanuel's death, Josephine developed Hodgkins disease and required a great deal of help at her home. The plaintiffs gave her the help she needed, and continued to take care of the property.

In 1978, Josephine died intestate. One of the assets of her estate was the premises located at 96 Belmont Street. At trial, Josephine's two sisters testified that Josephine intended to make out a will conveying the premises in question to the plaintiffs.

On appeal from the judgment ordering the conveyance of the property to the plaintiffs, the defendant presses a number of claims of error.

I

Three of the defendant's claims relate to the failure of the trial court to grant his motion for a directed verdict.

A

The defendant argues first that the trial court erred in denying his motion for a directed verdict because "there was an absence of evidence that the Defendant's decedent entered into a contract with the Plaintiffs." The basis of this claim appears to be that since Alexander was not present at the conversation between Lucille and Josephine, there was a lack of any evidence to show that Alexander was a party to the contract with Josephine.

It is true, as the defendant points out, that in order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties; see Restatement (Second), Contracts, §§ 1(c), 15, 19 (Tent. Dr. 1964); 1 Williston, Contracts, §§ 18, 22 (1957); see also Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 444, 6 A.2d 357 (1939); Clark v. Diefendorf, 109 Conn. 507, 510, 147 A. 33 (1929); and the identities of the contracting parties must be reasonably certain. We disagree, however, with the defendant's claim that both of these elements were lacking in the present case.

The fact that Alexander was not present during the conversation between Lucille and Josephine, or that he did not formally discuss the agreement with Josephine, does not mean that he could not be found to be a party to the contract with Josephine. "The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act." Restatement (Second), Contracts, § 21(1) (Tent. Dr. 1964). See 1 Corbin, Contracts, § 18 (1963); 1 Williston, Contracts, § 22A (1957). There was sufficient evidence from which the jury could have found that Josephine indicated her assent to the agreement-as earlier discussed among the plaintiffs and Emmanuel-with both Alexander and Lucille, and that Alexander indicated his assent to the agreement with Josephine. Not only had Josephine verbally agreed to the proposed agreement concerning both plaintiffs with Lucille, but her acts also manifested her intent to enter into the contract with both Lucille and Alexander. Likewise, Alexander's discussion with Lucille and Emmanuel, and his subsequent acts, manifested his intent to enter into the contract with Josephine and Emmanuel. The jury could reasonably have inferred that Josephine along with her husband, intended to enter, and did enter, into a contract with both Lucille and Alexander and that Alexander and Lucille intended to enter, and did enter, into a contract with Josephine and Emmanuel.

B

The defendant next contends, on essentially two grounds, that the trial court erred in denying his request for a directed verdict based on the statute of non-claim, General Statutes § 45-205. He argues first that since Alexander was not a contracting party with Josephine, Alexander's sole claim was against the estate of Emmanuel. Since we have already concluded that it was reasonable for the jury to have found that Alexander was a contracting party with Josephine, this argument needs no further discussion.

The defendant further contends that, even assuming Alexander was a party to the contract with Josephine, the plaintiffs' claim should have been filed against the estate of Emmanuel because, having died intestate, Emmanuel took no steps to insure that the house would be devised to Josephine.

General Statutes § 45-205 reads in pertinent part: "(a) The court of probate may order the citation of the creditors of the deceased whose estate is in settlement before it to bring in their claims against such estate within such time, not more than twelve months nor less than three months, from the date of such order, as it limits .... (b) If any creditor fails to exhibit his claim ... within the time limited by such order, he shall be barred of his demand against such estate ...."

The issue of whether the plaintiffs had, but did not file, a claim against the estate of Emmanuel is not determinative of whether they now have a legitimate claim against the estate of Josephine. The agreement between the parties was that upon the death of the survivor of either Emmanuel or Josephine, the house would be devised to the plaintiffs. At the time of Josephine's death, the house was owned by her. The plaintiffs, up to the time of her death, fully performed their part of the agreement. Josephine, as the survivor of her husband, did not devise the house to the plaintiffs. Thus, the plaintiffs properly filed a claim against her estate for the breach of contract. The fact that they did not file a claim against the estate of Emmanuel acts as no bar to their right to file a claim against Josephine's estate. ¹

C

The defendant also sought a directed verdict on the ground that the plaintiffs failed to satisfy the requirements of the statute of frauds, General Statutes § 52-550. That statute states: "No civil action shall be maintained ... upon any agreement for the sale of real estate or any interest in or concerning it ... unless such agreement, or some memorandum thereof, is made in writing and signed by the party to be charged therewith or his agent." Ibid. The court denied the motion, ruling that the acts of part performance took the case outside of the statute. On appeal, the defendant claims that the...