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This
was a complicated arrangement involving a horse named Princess.
Plaintiff Hengen agreed with defendant Coyn that Coyn would take care of
Princess and try to sell her. When
sold, everything above the original purchase price of $4,500 would be split
evenly between the two. Events
occurred in which defendant went out of the horse business, asked plaintiff to
pick up the horse, but she didn’t do so.
Later, after two years of boarding the horse, defendant sold the horse
for $4,500 to pay for part of the board.
In
this trial court opinion, the court finds that plaintiff abandoned Princess when
she refused to pick her up at defendant’s request.
Therefore, she cannot sue for defendant selling the horse.
Defendant had claimed that plaintiff owed her for the two years she
boarded the horse, but the court finds against the defendant on the grounds that
by abandoning the horse, plaintiff owned no board.
Therefore, both parties are kept in their original position and the court
refuses help either recover from the other.
The
plaintiff, Deborah Hengen, brings this action against the defendants, Emer Coyne
and Thomas Francis, alleging breach of contract, tortious breach of contract,
and statutory theft. Hengen claims that the defendants entered into a contract
to board and train her horse in exchange for a share of the profits from the
sale of the horse, and that the defendants breached the contract by selling
Hengen's horse without compensating her. Coyne counterclaimed for damages
incurred as a result of boarding and caring for the horse. Francis has denied
the allegations of the complaint.
FACTS
Hengen
has been involved with the ownership or riding of horses for approximately
twenty years. During the last fifteen years, Hengen has been involved in
horsetrading--she would purchase thoroughbred horses that were retired from
racing, train those horses for showing or jumping and then resell the horses for
a profit. Francis became involved in the horse business in 1989 when he
purchased the Hawthorne Farm in Willington, Connecticut. At the farm, Francis
boarded horses and provided training facilities for the horses and their riders.
He leased some of the stalls to the owners of horses. He also offered riding
classes at Hawthorne Farm.
Francis
met Coyne in 1989. At that time, Francis contracted with Coyne to provide
lessons and, in general, to supervise the stable. Coyne graduated from the
University of Connecticut with a degree relating to horses and veterinary
sciences. Since as early as 1990, Coyne has been involved in owning, showing,
valuation and training of horses and training riders. Thus, the court has before
it, three individuals who have been active in the horse business for a
significant period of time before the events that give rise to this litigation.
In
April of 1994, Hengen purchased a thoroughbred horse, Princess, for $4,500.00.
Hengen planned to use Princess as a show horse and a jumper. On the third
Saturday of March in 1995, Hengen's daughter was riding Princess in the
"Training Show." The Hengens were having difficulty getting the horse
to jump. As described by Coyne, the horse was interested in running, not
cantering or jumping. At the "Training Show," Hengen met with Coyne
and Francis and the parties discussed having Coyne and Francis board and train
Princess and ultimately sell the horse. [FN2] Thereafter, Coyne and Francis took
Princess from the show to Hawthorne Farm and commenced to board and train
Princess.
FN2. Although the parties are in dispute as to whether
Hengen started boarding the horse at the Hawthorne Farm in March of 1995 or
March of 1996 the court finds that the boarding arrangement started in 1995.
This is based upon the testimony of Coyne and the written agreement entered by
the parties dated March 16, 1996, which references that "Francis and Coyne
have and will provide services ..."
Approximately
one year later, the parties reduced their agreement to writing. The written
agreement, dated March 16, 1996, describes its purpose as follows: "Tom
Francis and Emer Coyne agree to make the best effort to sell said horse on
behalf of all parties." (Plaintiff's exhibit 2.) Coyne and Francis agreed
to board, provide veterinary care, train, exercise, show and market Princess at
their expense. The agreement set a proposed offering price of $12,000 that could
only be modified by agreement of all parties. In return for these services,
Hengen agreed that the defendants would receive "one half of the profit on
said horse over and above the sum of $4,500 which was paid originally for said
horse by Deborah Hengen." The contract had an addendum in Hengen's
handwriting
that the agreement was "to be reviewed on 8/1/97." The defendants
performed their responsibilities under the March 16, 1996 agreement through
August 1, 1997, but no buyer for Princess had been found as of that date.
Shortly
before the review date of the agreement, on July 25, 1997, Francis met with
Hengen and he told her that he had sold his farm and that he "was out of
the horse business." He advised Hengen to speak with Coyne and further told
her that Princess would have to be moved from Hawthorne Farm on or before August
1, 1997. Coyne testified that she asked Hengen to take Princess during the last
week of July 1997, because she was concerned about who would pay for the
boarding and care of the horse. Hengen did not respond to Coyne and drove away
from the Hawthorne Farm. Although Hengen had boarding facilities available to
her at her home for Princess, she made no arrangements to move the horse. No
further communication took place between Coyne and Hengen regarding the care of
Princess prior to August 1, 1997. Shortly before the Hawthorne Farm move-out
date of August 1, 1997, Coyne voluntarily moved Princess and several other
horses that she had been working with to the Quintree Farm in Tolland,
Connecticut.
The
parties did not review the agreement on August 1, 1997, as provided in the
agreement. Hengen, the author of the disputed phrase in the contract, "to
be reviewed on 8/1/97," indicated that she did not know the intent or the
meaning of the phrase and presumed that if there was no review, the contract
remained in effect. Francis believed that the "review" language meant
that if there was no agreement to continue, the agreement was "null and
void." Coyne, like Francis, understood that if there was no review of the
contract in August of 1997, that the agreement was to be "null and
void." She and Francis "weren't going to keep paying expenses. She (Hengen)
would have to take the horse home or start paying board."
Throughout
the fall of 1997, Hengen and Coyne attempted to communicate with each other, but
with no success. Each party claims to have left messages for the other. The lack
of communication was caused by several factors. These factors include that in
September of 1997, Hengen was injured while riding another horse and was
hospitalized for several weeks. Hengen also moved and did not provide Coyne with
her new address.
During
this time, Coyne paid board and veterinarian fees to the Quintree Stables
relating to Princess. The monthly boarding fees were between $350.00 to $400.00
per month. She also continued to train and show the horse and advertise the
horse for sale. Sometime later, Princess was moved by Coyne from the Quintree
Stables to the Legends Farm. Coyne paid for the board and veterinary fees for
Princess at the Legends Farm. The monthly boarding fees at the Legends Farm were
$500.00 per month. Coyne also continued to train and show the horse. In total,
Coyne claims to have spent the following sums on Princess since August 1, 1997:
Board at Quintree and Legends
Farms $10,675.00
Blacksmith
1,400.00
Veterinary Bills
1,165.10
Showing Expenses
867.00
-----------------------------------------------
Total
$14,107.10
Coyne
never sent a bill for any of these costs relating to Princess to Hengen. Coyne
never consulted with Hengen regarding the treatment of degenerative joint
disease in Princess's hocks.
Hengen
testified that she was aware that Princess had been moved from the Hawthorne
Farm to the Quintree Stables. She visited Quintree several times and observed
that the horse appeared in good shape. During these visits, for various reasons,
she did not speak with Coyne. Hengen also stated that she was aware that
Princess was moved to the Legends Farm. She visited the horse there on several
occasions, observed that the horse was in good shape, but again did not speak
with Coyne.
At
the Pines Horseshow in the summer of 1998, Hengen and Coyne encountered one
another and finally a conversation took place. Both parties recall the meeting
at the Pines Horseshow but disagree about the content of their conversation.
Coyne was mounted on a horse preparing to enter the show ring when she and
Hengen had a conversation. During this conversation, Coyne stated to Hengen,
"you're into me for a lot of money," to which Hengen responded,
"I don't have money to give you ... I assumed you knew I was walking away
from Princess." There were two independent witnesses to this conversation
that confirm the substance of the conversation, as described by Coyne. Coyne
felt that she had been given Princess.
Prior
to September 5, 1999, Coyne arranged for the sale of, and subsequently sold
Princess to Tracy Hudson for the sum of $4,500.00. (Defendant's Exhibit 1.) She
retained all of the sale proceeds. On September 9, 1999, Hengen showed up at the
Legends Farm with her horse trailer and demanded for the first time that
Princess be returned to her. Since Princess had already been sold, this lawsuit
ensued.
ANALYSIS
In
the first count, Hengen alleges that the parties entered into a binding written
contract on March 16, 1996. Pursuant to the agreement, Francis and Coyne would
provide services in exchange for profits from the sale of the horse. According
to the complaint, Coyne and Francis breached the contract in September of 1999,
when Coyne sold Princess.
It
is undisputed that a contract existed between the parties from March 16, 1996
and August 1, 1997. It is also undisputed that each party met their contractual
obligations during that time period. The key to determining whether the
plaintiff is entitled to damages based upon a contract theory of recovery is the
meaning of the words "to be reviewed on 8/1/97."
"A
contract must be construed to effectuate the intent of the parties, which is
determined from the language used interpreted in the light of the situation of
the parties and the circumstances connected with the transaction ... [T]he
intent of the parties is to be ascertained by a fair and reasonable construction
of the written words and ... the language used must be accorded its common,
natural, and ordinary meaning and usage where it can be sensibly applied to the
subject matter of the contract. (Internal quotation marks omitted.) Tallmadge
Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746
A.2d 1277 (2000).
"In
determining whether a contract is ambiguous, the words of the contract must be
given their natural and ordinary meaning ... [A] contract is ambiguous if the
intent of the parties is not clear and certain from the language of the contract
itself. [A]ny ambiguity in a contract must emanate from the language used by the
parties ... If the language of the contract is susceptible to more than one
reasonable interpretation, the contract is ambiguous. (Citations omitted;
internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut,
LLC, 259 Conn. 665, 670-71, 791 A.2d 546 (2002). "[I]t is generally
accepted ... when two or more meanings may fairly be given to language in a
contract, the language is to be construed against the one who drew it ... and,
likewise, the language of a contract is typically construed most strongly
against the party whose language it is and for whose benefit it was inserted
..., however, ... [b]efore this rule of construction may be applied, there must
be a determination that the terms of the contract are actually ambiguous."
(Citation omitted; emphasis in original; internal quotation marks omitted.)
Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn.App. 530, 533,
630 A.2d 115 (1993).
The
court finds that the contract language "to be reviewed on 8/1/97" is
ambiguous. Since Hengen is the author of the language of the contract creating
the review date of August 1, 1997, it is appropriate to construe that language
against her. Hengen has not offered any interpretation of the language to
counter the interpretation offered by the defendants. Moreover, an
interpretation of the "review" language terminating the agreement if
no review is conducted would render the terms of the contract reasonable rather
than unreasonable. If the "review" clause is not interpreted as
terminating the contract, then for so long as Hengen avoided reviewing the
contract she would be entitled to free board and care for her horse from the
defendants. Hengen knew or should have reasonably understood that Francis was no
longer in the horse business based upon her knowledge of his sale of the
Hawthorne Farm as well as his conversation with her. Further Hengen refused to
participate in a review of the contractual relationship when Coyne requested her
to remove Princess from the Hawthorne Farm by August 1, 1997. The import of this
request was that the agreement would have to terminate or that it would have to
be revised. Based on the testimony of the witnesses and rules of contract
construction, the court finds that there was no review of the contract terms as
called for by the agreement and that each of the defendants communicated to
Hengen that they were unwilling or unable to continue under the prior terms of
the agreement. The contract therefore terminated on August 1, 1997. See
Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252
Conn. 498. Because the March 16, 1996 contract terminated on August 1, 1997
there is no recovery for the plaintiff on the first count of her complaint.
In
the second count of her complaint, Hengen alleges that the defendants' actions
with respect to the alleged breach of contract showed reckless indifference to
her rights or were intentional or wanton. This is a theory of recovery sounding
in tort and based upon an implied covenant of good faith and fair dealing. The
conduct complained of is Coyne's sale of Princess in September of 1999 and
Coyne's failure to pay over to Hengen all of the proceeds of that sale.
"Breach
of contract founded on tortious conduct may allow the award of punitive damages.
Such tortious conduct must be alleged in terms of wanton and malicious injury,
evil motive and violence, for punitive damages may be awarded only for
outrageous conduct, that is, for acts done with a bad motive or with a reckless
indifference to the interests of others ... Thus, there must be an underlying
tort or tortious conduct alleged and proved to allow punitive damages to be
granted on a claim for breach of contract, express or implied." (Citation
omitted; internal quotation marks omitted.) L.F. Pace & Sons, Inc. v.
Travelers Indemnity Co., 9 Conn.App. 30, 48, 514 A.2d 766 (1986).
The
issue presented by the second theory of recovery requires the court to focus on
the conduct of the parties and the rights of the parties, in, and to the horse
after the termination of their written contract. Was the import of Mrs. Hengen's
conduct consistent with a claim of ownership of the horse or that of abandonment
of her rights in the horse?
"Abandonment
in its general sense is the intentional relinquishment of a known right."
(Internal quotation marks omitted.) Sharkiewicz v. Lepone, 139 Conn. 706, 707,
96 A.2d 796 (1953). "Abandonment of personal property such as a [horse]
requires an intention to abandon or relinquish accompanied by some act or
omission to act by which such an intention is manifested and is a question of
fact ..." (Internal quotation marks omitted.) Sanchez v. Forty's Texaco
Service, Inc., 5 Conn.App. 438, 440, 499 A.2d 436 (1985).
Immediately
prior to and subsequent to August 1, 1997, Hengen avoided the
"review" called for by written agreement. In the absence of any
agreement, it is clear that Hengen would have had to pay for the boarding and
training of Princess. From the testimony of the parties, the boarding expenses
would have cost between $3,600 and $6,000 per year.
The
conduct of Hengen, including her failure to respond to Coyne's demand that
Hengen take Princess from Hawthorne Farm on or before August 1, 1997, her
failure to take steps to communicate with Coyne about their respective
obligations towards Princess, her failure to wait to speak with Coyne when
Hengen "visited Princess" at Quintree Stables and Legends Farm, and
her expressed intent at the Pines Horseshow in the summer of 1998, amounted to
an intent to relinquish and thus an abandonment of the horse. See Sanchez v.
Forty's Texaco Service, Inc., supra, 5 Conn.App. 440.
Thus,
the plaintiff cannot recover under her second theory of recovery because she had
abandoned the horse. Moreover, the conduct of the parties, under the
circumstances, does not demonstrate that Coyne acted outrageously.
In
the third count, Hengen alleges that the sale of Princess constituted statutory
theft. Specifically, she alleges that Coyne's failure to notify her of the sale
of Princess showed her intent to permanently deprive Hengen of her property.
"Statutory theft under s 52-564 is synonymous with larceny under General
Statutes s 53a-119 ... Pursuant to s 53a-119, [a] person commits larceny when,
with intent to deprive another of property or to appropriate the same to himself
or a third person, he wrongfully takes, obtains or withholds such property from
an owner. By comparison, [c]onversion is an unauthorized assumption and exercise
of the right of ownership over goods belonging to another, to the exclusion of
the owner's rights ... In addition, conversion requires that the owner be harmed
as a result of the unauthorized act ... Conversion may arise subsequent to an
initial rightful possession ... Conversion can be distinguished from statutory
theft as established by s 53a-119 in two ways. First, statutory theft requires
an intent to deprive another of his property; second, conversion requires the
owner to be harmed by a defendant's conduct. Therefore, statutory theft requires
a plaintiff to prove the additional element of intent over and above what he or
she must demonstrate to prove conversion." (Citations omitted; internal
quotation marks omitted.) Suarez-Negrette v. Trotta, 47 Conn.App. 517, 520-21,
705 A.2d 215 (1998).
Given
the court's finding that Hengen had abandoned Princess at the Pines Horseshow,
there can be neither conversion nor statutory theft. Moreover, even if Hengen
had not abandoned the horse, the court could not find that Coyne had the
requisite intent to deprive as required for statutory theft.
Coyne
counterclaims for expenses that she incurred while retaining possession of
Princess, relying on the equitable theory of quantum meruit. At trial, Coyne
presented evidence of various veterinary and boarding fees for the period of
time from August 1, 1997 until September 1, 1999. "Quantum meruit is the
remedy available to a party when the trier of fact determines that an implied
contract for services existed between the parties, and that, therefore, the
plaintiff is entitled to the reasonable value of services rendered ... Such
contracts are determined from evidence of the parties' course of conduct which
implies a promise to pay for the services rendered." Biller Associates v.
Peterken, 58 Conn.App. 8, 16, 751 A.2d 836, cert. denied, 254 Conn. 914, 759
A.2d 506 (2000).
After
August 1, 1997, both Hengen and Coyne acted as though Princess had been
abandoned by Hengen. Coyne voluntarily moved the horse from the Hawthorne Farm
to the Quintree Farm without the express consent of Hengen. Coyne could have
simply left the horse at the Hawthorne Farm and let Hengen resolve the situation
with the new owner of Princess. This conduct does not support an inference that
Hengen would pay for the board and care of Princess. It evidences Hengen's
intent to avoid those obligations.
Likewise,
Coyne did not act as though she expected payment from Hengen. She did not send
bills. She did not pursue contact with Hengen. She never consulted with Hengen
regarding the treatment of degenerative joint disease in Princess's hocks. Once
the conversation at the Pines Horseshow took place she could not have any
reasonable expectation of payment. She retained the proceeds from the sale of
the Horse as if it were her own. Conceivably, she could have sought relief under
the lien authorized by General Statutes s 49-70 [FN3] but did not do so.
FN3. General Statutes s 49-70 states in relevant part:
"When a special agreement has been made between the owner of any animals
... and any person who keeps and feeds such animals, regarding the price of such
keeping, such animals shall be subject to a lien, for the price of such keeping,
in favor of the person keeping the same; and such person so keeping such animals
may detain the same until such debt is paid ..."
The
court finds that, based on the evidence, Hengen did not impliedly promise to pay
Coyne for the boarding and veterinarian services that Coyne provided for
Princess.
Accordingly,
there was no implied contract and Coyne is not entitled to any equitable remedy.
Judgment
may enter for the defendants on the plaintiff's complaint and for the plaintiff
on the defendant's counterclaim.
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