Clark v. Grabosky

Connecticut Superior Court

Clark v. Grabosky

14 Conn. Super. Ct. 170, 14 Conn. Supp. 170, 1946 Conn. Super. LEXIS 58

CourtConnecticut Superior Court

DecidedJune 26, 1946

DocketFile 76326

StatusPublished

Cited by1 cases

This text of 14 Conn. Super. Ct. 170 (Clark v. Grabosky) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Grabosky, 14 Conn. Super. Ct. 170, 14 Conn. Supp. 170, 1946 Conn. Super. LEXIS 58 (Colo. Ct. App. 1946).

Pincite

Opinion

COMLEY, J.

Paragraph 2 of the complaint contains the allegation that “the plaintiff entered into a written contract with the defendants, a copy of which is annexed hereto and marked ‘Exhibit A,’ whereby he agreed to purchase and the defendants agreed to sell” certain real estate described thereon.

The defendants move to expunge the words “whereby he agreed to purchase and the defendants agreed to sell” the pre' mises on the ground that this is a “legal conclusion alleged *171 without facts to support it.” As I understand the defendants" claim, it is that the agreement attached to the complaint and marked “Exhibit A” is, on its face, legally insufficient as a contract for the purchase and sale of real estate, that it does not furnish support for the allegation that it was such a contract and, therefore, the defendants are entitled to have the allegation expunged.

It is true that where a mere legal conclusion is pleaded without the essential facts to support it being in any way set forth, a motion to expunge it will lie for the bare assertion of a legal conclusion without facts to support it is immaterial. Amman v. Connecticut Light & Power Co., 117 Conn. 230, 235.

But where the facts are set forth and the legal conclusion is merely the pleader’s claimed construction of those facts, then a demurrer and not a motion to expunge is the proper remedy to test the sufficiency of the pleading. Donovan v. Davis, 85 Conn. 394, 397.

In this complaint, the plaintiff has set forth a written agreement which he claims is a valid contract for the purchase and sale of real estate. He has thus set forth the essential facts upon which his claimed conclusion of law is based. His claimed conclusion of law may be erroneous but it is not immaterial. Whether or not it is erroneous depends upon the proper construction of the written contract which he has set up and that is a question which must be raised by demurrer and not by motion to expunge.

The motion is denied.

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COMLEY, J.

Paragraph 2 of the complaint contains the allegation that “the plaintiff entered into a written contract with the defendants, a copy of which is annexed hereto and marked ‘Exhibit A,’ whereby he agreed to purchase and the defendants agreed to sell” certain real estate described thereon.

The defendants move to expunge the words “whereby he agreed to purchase and the defendants agreed to sell” the pre' mises on the ground that this is a “legal conclusion alleged *171 without facts to support it.” As I understand the defendants" claim, it is that the agreement attached to the complaint and marked “Exhibit A” is, on its face, legally insufficient as a contract for the purchase and sale of real estate, that it does not furnish support for the allegation that it was such a contract and, therefore, the defendants are entitled to have the allegation expunged.

It is true that where a mere legal conclusion is pleaded without the essential facts to support it being in any way set forth, a motion to expunge it will lie for the bare assertion of a legal conclusion without facts to support it is immaterial. Amman v. Connecticut Light & Power Co., 117 Conn. 230, 235.

But where the facts are set forth and the legal conclusion is merely the pleader’s claimed construction of those facts, then a demurrer and not a motion to expunge is the proper remedy to test the sufficiency of the pleading. Donovan v. Davis, 85 Conn. 394, 397.

In this complaint, the plaintiff has set forth a written agreement which he claims is a valid contract for the purchase and sale of real estate. He has thus set forth the essential facts upon which his claimed conclusion of law is based. His claimed conclusion of law may be erroneous but it is not immaterial. Whether or not it is erroneous depends upon the proper construction of the written contract which he has set up and that is a question which must be raised by demurrer and not by motion to expunge.

The motion is denied.

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Bluebook (online)

14 Conn. Super. Ct. 170, 14 Conn. Supp. 170, 1946 Conn. Super. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-grabosky-connsuperct-1946.

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