McMahon v. Plumb

Roraback, J. In his reasons of appeal the plaintiff contends that the court erred in refusing him permission to amend his complaint. The record discloses that the proposed amendment was not offered until more than two weeks after the final argument had been made before the trial judge. Under such circumstances the allowance of the amendment was a matter for the discretion of the court below. Wildman v. Wildman, 70 Conn. 700, 41 Atl. 1; Kelly v. New Haven Steamboat Co., 75 Conn. 42, 52 Atl. 261. We might also add that the result would not have been different if the proposed amendment had been allowed. The only question of law properly raised by the reasons of appeal is whether or not the plaintiff, upon the facts found, was entitled to a judgment under the pleadings. The finding shows that, before the execution of Exhibit A, the plaintiff and defendant were upon the premises described in the plaintiff’s complaint, when the defendant pointed out the lot as described in the complaint as having a frontage of ninety feet on Beach Avenue and a depth of one hundred feet on *284 Milford Point Road. The defendant at the same time also pointed out certain trees growing upon this lot, and stated that the price was $225, payable in instalments. Subsequently, on the 18th day of October, 1910, the parties entered into a written agreement (Exhibit A), which provided "for the purchase by the plaintiff and the sale by the defendant of a piece of land described as follows, to wit: ‘Lot No. 1, on map of lots at Walnut Beach, and filed at the Town Clerk’s office at Milford, Connecticut, to which reference may be had.’ ” No map describing the defendant’s property has ever been filed in the town clerk’s office at Milford, answering the description of the map mentioned in Exhibit A. No map or plan of the defendant’s property has ever been made, except a rough sketch which the defendant himself prepared, and in which Lot No. 1 is described as being thirty feet on Beach Avenue and one hundred feet on Milford Point Road. The finding does not show that the plaintiff ever saw or knew of the existence of the map last described, or that it was ever in the town clerk’s office in Milford. In the spring of 1912, while the plaintiff was still paying instalments to the defendant under the terms of Exhibit A, the defendant caused trees and brush standing upon this land with a ninety foot front to be cut down and removed. The plaintiff made demand on the defendant for compensation for the cutting of these trees, and the defendant compromised the plaintiff’s claim by crediting him with the sum of $35 upon the purchase price. When the plaintiff had fully paid for the lot, under the terms of Exhibit A, he demanded a deed for the same, and the defendant tendered him a deed for a lot with thirty feet on Beach Avenue, which the plaintiff refused to accept. The land claimed to be affected by the written agreement (Exhibit A) was not the only land owned by the defendant at this place *285 on Beach Avenue, when the written agreement was made. The agreement (Exhibit A) referred to Lot No. 1 on map of lots filed in the town clerk’s office in Milford. In the absence of such a map, the quantity of land sold could not be ascertained. The description might have been made certain had the plaintiff been able to prove that the defendant had but one lot of land at this place when the agreement was executed. McMahon v. Plumb, 88 Conn. 547, 92 Atl. 113. The plaintiff, in his alleged claim for damages for a breach of contract, is met in the present case with the same objection which confronted him upon the former trial, namely, that the description of the land in the written agreement was not certain and was not capable of being rendered certain. Before leaving the discussion of the case, it is proper to note that the defendant’s special defense is also based upon this same written agreement (Exhibit A). This defense is open to the same objection that we find exists in the plaintiff’s alleged cause of action. This disposes of the plaintiff’s claim for a specific performance of the contract; but there remains for consideration his claim for damages, which, if properly alleged, he was entitled to have determined by the trial court. General Statutes, § 613. The complaint contained but one count, but the grounds for both equitable and legal relief may properly be stated in a single count. Trowbridge v. True, 52 Conn. 190, 197. If the plaintiff’s cause of action is based upon a claim for damages, upon the theory that under a contract which was not enforceable he has honestly and in good faith paid money for land which he cannot obtain, and the defendant refuses to repay this money, he should have alleged facts that would state such a case. This he failed to do. See Wainwright v. Talcott, *286 60 Conn. 43, 52, 22 Atl. 484; Gilson v. Boston Realty Co., 82 Conn. 383, 73 Atl. 765. There is no error. In this opinion the other judges concurred, except Beach, J., who dissented.