Wetkopsky v. New Haven Gaslight Co.

• Decision Date: 15 March 1916
• Court: Connecticut Supreme Court
• Parties: WETKOPSKY v. NEW HAVEN GASLIGHT CO.

96 A. 950

90 Conn. 286

WETKOPSKY

v. NEW HAVEN GASLIGHT CO.

Supreme Court of Errors of Connecticut.

March 15, 1916.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Sylvester Wetkopsky against the New Haven Gaslight Company. Judgment for plaintiff, and, after remittitur, defendant appeals. Error and. new trial ordered.

See, also, 88 Conn. 1, 90 Atl. 30.

The action is to recover damages for an alleged breach of contract. There was a verdict for the plaintiff for $1,500, which the court ordered set aside unless the plaintiff should remit $650. Remittitur was filed, and judgment rendered for the plaintiff for $850. The plaintiff was successful (88 Conn, 11) in obtaining, on appeal, a reversal of a judgment of nonsuit rendered by the court below. On the retrial of the case a verdict and judgment were rendered as above indicated. The appeal alleges errors in the charge as given, in the refusal to charge as requested, in the rulings of the court upon evidence, and in denying a motion to correct.

In March, 1912, the defendant owned a seven-room dwelling house standing upon its land on Mill street in New Haven. About March 22, 1912, the gas company decided to erect a gas tank on this land and started at once to excavate for that purpose. The defendant made a contract for the erection of the tank. It agreed therein to have the foundations for the tank completed on April 17, 1912. A failure to do this would have subjected the defendant to a penalty. To complete the foundations at the time specified in the contract it was necessary to tear down or remove the house by Tuesday, April 2d. The house was rented to tenants to April 1st, and the defendant had reason to believe that it would be occupied until this time. The plaintiff owned some land, with a barn standing thereon, near by. On March 27, 1912, the plaintiff and his wife, went to the superintendent of the defendant company and had a conference with him in reference to the purchase of this house. The parties then entered into a parol agreement in reference to the purchase and sale of the house. The price that was to be paid was $40. At this time there were six teams and a number of men engaged in making excavations for the new tank upon the defendant's lot. These facts were conceded.

As to the terms of the agreement, the parties disagreed. The plaintiff claimed and offered evidence to show that he bought the house and had a right to do what he pleased with it, so long as he moved it off of the defendant's land by Tuesday night, April 2d; that he intended to and had made a contract for the removal of the house upon his lot, described above; that he had caused a barn standing upon his lot to be torn down and demolished in order that he might remove this house; that the reasonable value of the house was $2,000, if it had been removed as he intended and had made arrangements to do; that the defendant refused to carry out this contract, and that on Saturday, March 30th, the company tore down the house.

The defendant offered evidence to prove that it sold the plaintiff the materials of the house, with the right to enter upon its premises and tear it down and carry them away by Tuesday night, April 2d; that it would have been impossible to remove the house, as a whole, in the short space of time which must be allowed for that purpose; that if the plaintiff removed the house it would have seriously interfered with its work of excavation, and that it sold the materials of the house for $40, because of the short space of time which must be allowed for its removal from the premises. The defendant contends that the latter fact may be fairly inferred from the plaintiff's own testimony, that the value of the house to be moved away was $2,000. Evidence was also offered by the defendant to show that it did not know of the plaintiff's intention to remove the house until after the payment of the $40. As soon as the defendant learned of the plaintiff's intention it sent for him and stated to him that the agreement was that he should tear the house down and take away the materials; that the plaintiff insisted that he would not tear down the house; that he had bought it and was going to move it away. The superintendent of the company replied that moving it away was contrary to the agreement; that he could not carry out such an agreement within the time limited; that he tendered back the $40 which had been paid, and afterwards tore down the house.

Thomas M. Steele and Harrison T. Sheldon, both of New Haven, for appellant. Samuel A. Persky, of New Haven, for appellee.

RORABACK, J. (after stating the facts as above). In the trial of this case, when it was before this court at the October term, 1913, it was decided that:

"The sale of a building which the parties intend shall at once be torn down and removed, or removed as a whole, is a sale of personal property, and not 'of real estate or any interest' therein, within the meaning of that expression in the statute of frauds (Gen. St. 1902, § 1089); and therefore a contract of that nature may be proved by oral evidence." Wetkopsky v. New Haven Gaslight Co., 88 Conn. 1, 90 Atl. 30.

At the last trial, in the court below, the principal contention arose as to the terms of the contract which had been made between the parties. The plaintiff claimed that he bought the house, without any restrictions or limitations as to the manner in...