Wainwright v. Talcott , 60 Conn. 43 ( 1891 )

From the finding of facts in this case it appears that prior to 1870 a certain lot of land in Hartford was owned in common and undivided by John L. Talcott and Thomas, his brother, the former owning four fifths and the latter one fifth. Thomas died in 1870, and his interest in the land then descended to his daughter, now the wife of the plaintiff, subject to her mother's right of dower. John L. Talcott had no sister and Thomas was his only brother. He had no nephews, and no nieces save the wife of the plaintiff. John L. Talcott and the defendant, who is his executrix, intermarried in 1876, and he died in 1887. From 1870 down to the time of John's death, said real estate continued to be held in common by said parties in the manner stated.

The complaint contains four counts, but the third and fourth are practically the same. We deem it unnecessary to consider any of the counts save the second. That count sets out in substance that on July 1st, 1882, and on divers other days since, John L. Talcott assured and promised the plaintiff that upon his, John L. Talcott's, death, his interest in said real estate should go to the plaintiff's wife and children, and that any improvements made by the plaintiff thereon and expenses incurred therefor, should at the death of said Talcott accrue to the benefit of the plaintiff's wife and children; that in reliance upon said promise and assurance the plaintiff expended large sums of money on the permanent improvement of said real estate; that Talcott knew of this expenditure and knew that it was done in reliance upon his said assurance; that afterwards Talcott, by will, left all of his interest in said real estate to others, and has never in any way reimbursed the plaintiff for said expenditures; and that said conduct of Talcott was wrongful and fraudulent and injured the plaintiff to the amount of four thousand dollars. The complaint prayed for both legal and equitable relief in damages.

To this count the defendant demurred, the court overruled the demurrer, and by a bill of exceptions the question whether that decision was right is brought before this court.

On the trial below, for the purpose, among other things, of proving the allegations of the complaint as to said promise and assurances of Talcott, the plaintiff offered, in connection with other evidence, the declarations of Talcott made at divers times during the time the plaintiff was so expending money on said real estate improvements, and before and after Talcott's marriage, showing or tending to show "an understanding, as between Talcott and the plaintiff, that any expenditures the plaintiff might incur in the improvement of the property would be compensated by the property coming to the wife and children of the plaintiff, and that said Talcott knew that the expenditures made by the plaintiff were made because the plaintiff relied upon his promise as to such disposition of his property, and knowing this, permitted and encouraged the plaintiff to make such expenditures." To this evidence the defendant objected, on the ground that such declarations constituted a parol promise to devise real estate, and claimed that such promise was within the statute of frauds, and that evidence of it was inadmissible. The court excluded the evidence.

We will first consider whether the court erred in overruling the demurrer to the second count. The defendant says, in the first place, that this count sets forth no cause of action, inasmuch as the promise alleged, namely, to leave the real estate to the plaintiff's wife and children, is without consideration and void, and there is no allegation of any promise made by Talcott to pay any part of the expenses incurred by the plaintiff in making the improvements.

If the cause of action relied upon in this count is founded upon any promise or assurance of Talcott as a contract or agreement to so leave the real estate or to pay for part of the improvements, then this objection is well taken. No consideration for any such promise is stated, and upon the facts set forth it is difficult to see how one can be inferred, Indeed the cause of action seems based, in part at least, on the fact that the promise or assurance made by Talcott to the plaintiff was without consideration and could not therefore be enforced as a contract, either at law or in equity.

The question then, of consideration for the promise or assurance alleged, may be laid out of the case, because the right to recover, if any exists, does not depend upon that question. And this is also true of the objection that Talcott never promised to pay for any part of the improvements to the real estate. The action, so far as the count in question is concerned, is not founded upon any agreement of Talcott to pay for the improvements, as such. The plaintiff claims no damages for the breach of any such agreement, and is not seeking to enforce any such agreement, and therefore it was unnecessary to allege one. So far then as these objections are concerned the demurrer was properly overruled.

In the second place, the defendant says that if this count be regarded as founded upon the wrongful and fraudulent conduct of Talcott, still it is demurrable "because the allegations therein do not show any fraud." Of course it is never sufficient merely to allege fraud without setting forth the facts constituting the fraud. But here the facts as to the conduct of Talcott in the premises, and how that conduct has injured the plaintiff, are fully set forth. No actual fraud or evil design in making the promise and assurance is alleged, but if the facts stated bring the conduct of Talcott within the definition of what, for want of a better name, courts of equity call "constructive fraud," that is sufficient, whether the word "fraud" be used or not. We think the second count states such it case. In many cases where a vendee of land has entered into possession, under a contract not enforceable by reason of the provisions of the statute of frauds, and in good faith has made valuable improvements thereon, and afterwards the vendor refused or was unable to convey, courts of equity have decreed specific performance, on, the ground that to allow the statute to be set up in such cases "would amount to practising a fraud." Browne on Stat. of Frauds, §§ 437, 447, 448, and cases cited.

And a principle analogous to this is applied in cases of a parol promise to give lands, upon the faith of which possession is taken and improvements made, although in such cases there is no contract at all for the breach of which damages could be given. Browne on Stat. of Frauds, § 491a; Freeman v. Freeman, 43 N. York, 34;Kurtz v. Hibner, 55 Ill., 514;Hardesty v. Richardson, 44 Md., 617;Lee v. Garter, 52 Ind., 342; Story v. Black,5 Mont., 26.

And in such cases where, for any reason, courts of equity cannot decree specific performance, they will decree compensation to be made by the vendor to the vendee for the fair value of the improvements. Browne on Stat. of Frauds, §§ 119, 490; Bigelow on Fraud, 446; Worth v.Worth, 84 Ill., 442.

The principle applied in such cases is, that where one party by Ins contract, or his conduct outside of contract, which was well calculated to mislead another relying thereon, does mislead him to his harm, and thereby obtains an unjust and unconscientious advantage over the latter, he will not be allowed to reap the benefit of his wrong doing. The cause of action in such cases is not the refusal to perform a contract, or keep a promise or engagement upon which another relied, but it is the consequent unjust infliction of loss or injury upon one party, and the consequent benefit and advantage resulting to the other, from the violation or breach of a faith and confidence which, under the circumstances, a court of equity deems to have been rightly reposed in him. This principle is applicable to the case stated under the second count.

Upon the facts stated the decedent by his conduct gained an unjust advantage at the expense of the plaintiff. His retention or alienation to others of the land, with all its improvements, to the amount alleged of four thousand dollars, under the circumstances set forth, inflicts just as much loss and injury upon the plaintiff, and enriches the estate of the decedent just as much, as if such loss had been inflicted or advantage had been gained by the perpetration of a positive fraud. We think therefore that the demurrer to the second count was properly overruled.

This brings us to the second question, whether the court erred in rejecting the offered evidence. The objection made was, that the evidence would prove or tend to prove a parol promise to devise lands, which promise is, it was claimed, within the statute of frauds.

Whether such a promise is or is not within the statute we have here no occasion to discuss. For the purposes of the argument we will concede that the declarations of Talcott, which the plaintiff offered to prove, Would constitute a parol promise to devise land, and that such a promise is within the statute.

Obviously, however, if we are right in what we have said as to the nature of this action, especially as stated in the second count, the object of it is not to enforce a contract at all, either at law or in equity. Had the plaintiff sought to recover damages for the breach of the promise to leave the real estate to his wife and children, or to have it enforced specifically, and had offered the evidence to prove such a contract for such a purpose, the objection, on the concession we have made, would have been well taken, if the action be regarded as one at law, and perhaps also if it be regarded as one in equity. The statute is just as binding in courts of equity as in courts of law, but if a refusal on the part of one party to carry out a parol contract will work a fraud upon the other, equity will protect the latter against the injustice. Bigelow on Fraud, 446; Browne on Stat. of Frauds, § 119. And in such cases the party seeking the aid of a court of equity may always prove the parol agreement for the purpose of showing the fraud, whether it be actual or constructive.Busick v. Van Ness, 44 N. Jer. Eq., 82;Walker v. Shackleford, 49 Ark., 503.

But however this may be, in the case at bar the evidence ruled out was not offered to prove a contract for the purpose of having it enforced either at law or in equity, nor really to prove a contract at all. In offering it the plaintiff was merely attempting to show, as part of his cause of action, under the second count at least, what induced him to spend his money for permanent improvements on the laud of another, and upon what conduct of the decedent he relied in so doing. In asking the aid of a court of law or of equity it was not enough for the plaintiff to show that he had expended his money for such permanent improvements with the knowledge or acquiescence of Talcott, or in the unfounded and unwarranted hope or expectation that Talcott would convey or devise the lands or suffer them to go by law to the plaintiff's wife and children. He must show that he made the expenditures solely or largely upon the faith of Talcott's conduct and assurances; that under the circumstances he had a right to rely thereon, and that Talcott knew they were being so made. If he could show that his expenditures were so made, then it might follow, upon the other facts to be shown in the case, that the subsequent conduct of Talcott, by which he retained both the land and the value of the improvements as well, worked a fraud upon the plaintiff, and caused him loss and injury, for which a court of equity at least, taking account of all the circumstances as between the plaintiff and Talcott, would furnish him redress.

This would bring the case at bar clearly within the principle heretofore stated, which courts of equity apply in cases where there is no contract to convey, but only a promise to give land, in which case no action would lie upon the promise. As we have seen in such cases, if a party relying upon such a promise enters upon the land and makes permanent improvements thereon, even if solely for his own benefit, and is afterwards turned out by the other party, a court of equity will decree fair compensation for the improvements, although in such case there might perhaps be no redress at law. See the authorities heretofore cited upon this point.

In the case at bar, so far as we can see from the pleadings and finding, Talcott never contemplated paying for any part of the improvements. Under these circumstances the plaintiff has perhaps no remedy at law, and, for aught we know, has no adequate and complete remedy without the aid of a court of equity.

We think he has such a remedy in equity, and that the second count of his complaint sets up an equitable cause of action. If upon the hearing it shall appear, as the defendant claims, that under all the circumstances the plaintiff has been more than repaid for all his expenditures upon Talcott's property, a court of equity can do full and complete justice between the parties and protect the interests of all concerned.

The plaintiff was entitled to the evidence offered and the court below erred in rejecting it.

The judgment is reversed, and a new trial is granted.

In this opinion the other judges concurred.