Utley v. Nolan.

• Decision Date: 26 February 1948
• Citation: 58 A.2d 9,134 Conn. 376
• Court: Connecticut Supreme Court
• Parties: UTLEY v. NOLAN.

134 Conn. 376

58 A.2d 9

UTLEY

v.NOLAN.

Supreme Court of Errors of Connecticut.

Feb. 26, 1948.

Appeal from Superior Court, Hartford County; Troland, Judge.

Action by Marion Utley against Marjorie N. Nolan for specific performance of an alleged contract by defendant to sell real estate. A judgment was entered for defendant after demurrer to complaint had been sustained and plaintiff failed to plead further, and plaintiff appeals.

No error.

Edward Seltzer and Joseph P. Kenny, both of Hartford (Julius B. Schatz and Arthur D. Weinstein, both of Hartford, on the brief), for appellant (plaintiff).

James N. Egan, of Hartford (James J. O'Connor, of Hartford, on the brief), for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON, and INGLIS, JJ. (ERNEST A. INGLIS, Judge of the Superior Court, sat for Judge ELLS.)

DICKENSON, Judge.

The plaintiff sued for specific performance of an agreement claimed to have been made by the defendant to sell her property and for damages for its breach. The defendant demurred on the ground that it did not appear that she had signed any memorandum sufficient to satisfy the Statute of Frauds. The trial court sustained the demurrer and the plaintiff has appealed from the judgment resulting from her failure to plead over.

Attached to the complaint as exhibits are four written instruments which the plaintiff contends constitute an agreement of sale. While she also claims that without these the allegations in her complaint are sufficient to withstand attack by demurrer, an examination of the pleadings indicates that the allegations so patently depend upon the exhibits for support as to make the legal effect of the exhibits determinative of the correctness of the trial court's ruling on the demurrer. See Cleveland Co. v. Chittenden, 81 Conn. 667, 668, 71 A. 935; Klein v. Munson, 111 Conn. 709, 714, 151 A. 177. The defense of the Statute of Frauds was properly raised by demurrer. DiBlasi v. DiBlasi, 114 Conn. 539, 542, 159 A. 477.

The complaint may be summarized as follows: The defendant as a devisee under her husband's will had an interest in an apartment building known as 7 May Street, Hartford. On October 16, 1946, the plaintiff deposited with John T. Dunn, Jr., a real estate broker, $1000, and received the following document (exhibit A):

‘Hartford, Conn., Oct. 16, 1945.

‘Received from Mrs. Marion Utley, One Thousand and no/100 Dollars Deposit on Property #7 May St, Hartford, Conn. Sale

‘John T. Dunn, Jr.

‘By M. P.’

Thereafter, Dunn got from the defendant the following document (exhibit D):

‘Oct. 26, 1946

‘New Britain,

‘Conn.

‘I, Marjory Nolan of the Town of New Britain, County of Hartford, and State of Conn., in consideration of one or more dollars do hereby give to John T. Dunn, Jr., of Hartford, the option of the sale of the property known as 7 May Street, Hartford, which property is now being probated and in control of the Travelers Bank and Trust Co., of Hartford, as executor, under the will of my late husband, John J. Nolan and in accordance with said will, I am the beneficiary and will be distributed to me when the probating of the estate is concluded. Said property is located on the west side of May Street, and consists of 42 apartments, 35 3-rooms, 6 2-rooms and 11 1/2-rooms together with all fixtures and articles of personal property attached or used in connection with premises.

‘The purchase or selling price is $200,000 subject to a 1st mortgage of approximately in the sum of $117,350 and the balance in cash.

‘Mrs. Nolan reserves the right to occupy the 1st 3-room apartment available after April 1, 1947 at the prevailing rental.

‘The commission to be $6,500.00. This option shall continue until 30 days after I obtain title by distribution or in the event that I arrange for the transfer directly from the executor to such customer as J. T. Dunn, Jr., may produce then in that event he shall receive his commission as if I personally made the conveyance and said conveyance by the executor shall take place within 30 days after the order to convey had been approved by the Probate Court of Hartford.

‘Marjory N. Nolan.

‘In presence of

‘David L. Nair

‘Filed, May 3, 1947.’

Under date of November 1, 1946, Dunn wrote the defendant as follows (exhibit B):

‘Dear Mrs. Nolan:

‘I submit herewith in behalf of Marion Utley of West Hartford, an offer of $200,000.00 for the apartment house building located at #7 May St., Hartford. I have $1,000.00 cash in my possession to apply on the purchase price and at the time the deed passes, cash over and above the mortgage of $117,350.00 will be paid. In pursuance to agreement made Oct. 26th, 1946, I am submitting the offer and the said offer meets all conditions of the above mentioned agreement.

‘A copy of this letter is being sent to Attorney David Nair.

‘The adjustments of taxes, water, insurance, rents, etc., to be made as of date of deed.

‘The purchaser understands the situation in regards to the title at this time. I will await your further advices.

‘With kind personal regards, I am,

‘Very truly yours,

‘John T. Dunn, Jr.’

Under date of November 15, 1946, Dunn again wrote the defendant, as follows (exhibit C):

‘Dear Mrs. Nolan:

‘I am enclosing herewith check for $1,000.00 which is the deposit I referred to in my letter to you November 1st, 1946. I spoke to Attorney Nair about this and the title of the property is being searched now.

‘I will await hearing from you as to when the transfer can be made.

‘With kind personal regards, I am,

‘Very truly yours,

‘John T. Dunn, Jr.’

‘On and after’ October 26, 1946, the...