Harris v. Clinton Brief for the Appellants

    SUPREM E COURT O F ERRO RS
OF THE

STATE OF CONNECTICUT

N ew H aven County, O ctober T erm, 1951.

3558

WILLIAM HENRY HARRIS, ET UX
vs.

SAMUEL CLINTON, ET UX.

Court of Common Pleas No. 42284.

April 10, 1951.

BRIEF FOR THE APPELLANTS.

T. H olmes Bracken, E sq., 

Attorney for Appellees.

To be argued by

J ohn W. Newman .



2

THE ISSUE.

Whether a written agreement within the Statute of Frauds could 
be reformed in equity, when specific performance thereof is sought, 
to incorporate, in the absence of mistake or fraud, an alleged oral 
agreement which is avowedly designed to effectuate private racial 
discrimination, and, as so reformed, be rescinded by judicial decree 
when the effect of same is to defeat the right of a third person 
solely because of the race and color of said person.



3

STATEMENT.

A. The Undisputed Facts

1. On December 28, 1948, the defendants-appellees, Samuel 
Clinton and his wife, entered into a written agreement for the sale 
and transfer of real property, i.e., Exhibit A, a bond for deed, with 
one Peter Horbick whereby the defendants-appellees agreed to sell 
and Horbick agreed to buy a certain lot situated in the Town of 
West Haven, Connecticut, on the terms and conditions set forth 
in said agreement (R. 31).

2. Thereafter, in accordance with the express terms of said 
agreement, Horbick made the stipulated monthly payments with 
interest to the defendants-appellees until on or about June 17, 1949, 
when Horbick tendered the balance then due the defendants- 
appellees and demanded a deed to the said lot in accordance with 
said agreement (R. 34, 38, 39, 42).

3. On or about June 15, 1949, the said Horbick, in consideration 
of the sum of $600, conveyed by written quit-claim deed to the 
plaintiffs-appellants, William Harris and his wife, all of his interest 
in the said written agreement and his interest in the real property 
described therein (R. 31, 33, 44, 57).

4. The defendants-appellees refused to give Horbick a deed in 
accordance with the express terms of their agreement with him, 
although he tendered the balance due, for the reason that Horbick 
sought to convey his interest in the written agreement and to the 
lot in question to persons who are Negroes, the plaintiffs-appellants 
(R. 58,60, 61,65,67).

5. The defendants-appellees refused to give a deed to the plain­
tiffs-appellants as the assignees of Horbick for the reason that 
plaintiffs-appellants are Negroes (R. 64, 65, 66).



4

B. The Disputed Facts

1. Defendant-appellee Samuel Clinton testified that there was 
an oral understanding between himself and Horbick, which were 
terms and conditions of their agreement, that (a) Horbick would 
use the stone upon the lot to erect a dwelling house for himself 
and would begin construction of said house within a reasonable 
period of tim e; (b) that as long as Horbick retained an interest 
in the written agreement he would not assign his interest in same 
to any other party without first securing the consent and approval 
thereto of the defendants-appellees (R. 56-58). Clinton testified 
at one point (R. 56) that these oral agreements were made prior 
to the written agreement; at another point (R. 56) that they were 
made at the time the written agreement was drawn up; at a third 
point (R. 57) that the oral agreement regarding transfer was 
made subsequent to the written agreement; and at a fourth point 
(R. 56) that these oral agreements were reduced to writing, i.e. 
made a part of the agreement as written and appears in the agree­
ment as a provision that the instrument should not be filed or 
made a matter of public record.

2. This testimony was disputed by Horbick (R. 39-40, 46).

C. Facts Found Without Support in the Evidence

The following facts were found by the court below without 
support therefor in the evidence:

1. That in consideration of the alleged oral agreements between 
the defendants-appellees and Horbick, the price of the lot in ques­
tion was reduced to $300 (Finding No. 14(c), R. 18).

2. That the fear which the defendants-appellees have that a 
sale to Negroes will seriously affect the values of their remaining 
property and neighboring properties has substantial foundation 
(Finding Nos. 46 and 47, R. 21).



5

D. Facts Found By the Jury

The jury found as a fact that it was understood between the 
defendants-appellees and Horbick that Horbick could not transfer 
his rights under the written agreement to any person or persons 
without the prior consent and approval of the. defendants-appellees 
(R. 22-23, 78).

SUMMARY OF ARGUMENT

I. The written agreement, specific performance of which was 
sought in the court below, was a valid contract within the Statute 
of Frauds and, as such, could not be reformed in equity in the 
absence of mistake or fraud to incorporate any antecedent, con­
temporaneous, or subsequent oral agreement, even if such agree­
ment be proved, and extrinsic parol evidence was not admissible 
to vary, contradict, add to, or explain the plain meaning of the 
terms of such an agreement.

A. The agreement could be reformed in equity only for
mistake or fraud.

Dunham v. City of New Britain, 55 Conn. 378 (1887);
Texas Company v. Crown Petroleum, 137 Conn. 217 

(1950);
Home Owner’s Loan Corp. v. Stevens, 120 Conn.

6 (1935);
Town of Enfield v. Hamilton, 110 Conn. 319 (1930);
Roth v. Stein, 100 Corm. 668 (1924).

B. All antecedent and contemporaneous oral agreements
were merged in the written agreement.

Galpin v. Atwater, 29 Conn. 93 (1860);
Fitch v. Woodruff, 29 Conn. 82 (1860);

Dean v. Mason, 4 Conn. 428 (1822);
Barber v. Brace, 3 Conn. 9 (1819).
See, O’Loughlin v. Poli, 82 Conn. 427, 432 (1909).



6

C. Any proved subsequent oral agreement must be in writ­
ing and supported by separate consideration.

See, Nagel v. Modern Investment Corp., 132 Conn. 
698, 701 (1946).

D. Extrinsic parol evidence was not admissible to vary, con­
tradict, or add to the terms of such an agreement or to 
explain the plain and unambiguous meaning of its pro­
visions.

Adams v. Turner, 73 Conn. 38 (1900) ;
Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 

19 (1850).

E. The finding of the jury that there was an oral agreement 
that interest in the agreement could not be transferred 
to any person or persons without the prior consent and 
approval of the appellees is not supported by the 
weight of the evidence.

Nagel v. Modern Investment Corp., supra.

II. The written agreement, specific performance of which was 
sought in the court below, could not be reformed in equity to in­
corporate any oral agreement which is avowedly designed to effec­
tuate private racial discrimination and, as so reformed, rescinded 
by judicial decree when the intended effect of same is to defeat the 
otherwise valid right of a third person solely because of the race or 
color of such person.

A. The Prohibitions of the Fourteenth Amendment to the 
Federal Constitution.

Shelley v. Kraemer and Sipes v. McGhee, 334 U. S. 1
(1948);

Clifton v. Puente, 218 S. W. 2d 272 (Tex. Civ. App. 
1948);

Correll v. Earley, (Sup. Ct. Okla. No. 34141, Nov. 
20, 1951).



7

B. The Guarantee of Equal Rights of the Constitution of
This State.

State of Conn, ex rel. Brush v. Sixth Taxing District,
104 Conn. 192 (1926).

C. The Laws of the United States.

Hurd v. Hodge and Urciolo v. Hodge, 334 U. S. 24 
(1948).

D. The Public Policy of the United States and of This State.

Hurd v. Hodge and Urciolo v. Hodge, supra;
Roberts v. Curtis (D. C ), 93 Fed. Supp. 604 (1950).

ARGUMENT.

I.

The written agreement, specific performance of which was 
sought in the court below, was a valid contract within the 
Statute of Frauds and as such could not be reformed in 
equity in the absence of mistake or fraud to incorporate any 
antecedent, contemporaneous, or subsequent oral agreement, 
even if such agreement be proved, and extrinsic parol evi­
dence was not admissible to vary, contradict, add to, or ex­
plain the plain meaning of the terms of such an agreement.

The defendants-appellees entered into a written contract (bond 
for deed, Exhibit A) for the sale and transfer of a certain lot 
situated in the Town of West Haven, Connecticut, with Peter 
Ilorbick. The contract recited the date of the contract, the parties 
to the contract, the consideration for the contract, the description 
and location of the lot, the purchase price and the terms upon 
which the purchase price was to be paid by the vendee. In addi­
tion, the contract provided that same should not be filed with the 
Town Clerk of West Haven nor in any other way to be caused 
to become a matter of public record; that the vendors shall not be 
liable for the future sewer assessment; and that if the vendee failed



8

to make the several payments upon the purchase price, he shall 
forfeit all claims to the premises described, and all monies paid in 
pursuance of the agreement. The contract was signed and sealed 
by the parties to be charged, Samuel W. Clinton and his wife, 
Catherine E. Clinton (R. 4-5).

In short, this contract met all of the requirements of the 
Statute of Frauds.

General Statutes of Connecticut, Rev. of 1949, Vol.
I ll ,  Chapter 412, Sec. 8293;

Utley v. Nolan, 134 Conn. 376 (1948) ;
Gendleman v. Mongillo, 96 Conn. 541 (1921).

Specific performance of this agreement was sought in the court 
below by the appellants, assignees of Horbick, against the appellees. 
The appellees filed a cross complaint for reformation of the agree­
ment to include alleged oral agreements between themselves and 
Horbick and, as reformed, to rescind the agreement.

The court below, in granting judgment for the appellees, re­
formed the agreement as requested and rescinded the agreement.

The court below erred for the following reasons:

A. The agreement could be reformed in equity only for mistake 
or fraud.

The appellees neither alleged nor proved nor offered to prove 
mistake on their part, mutual mistake, or fraud. It is the settled 
law of this State that a written instrument may be reformed in 
equity only for mistake or fraud.

Dunham v. City of New Britain, supra;
Texas Co. v. Crown Petroleum, supra;
Home Owner’s Loan Corp. v. Stevens, supra;
Town of Enfield v. Hamilton, supra;
Roth v. Stein, supra.



9

B. All antecedent and contemporaneous oral agreements were 
merged in the written agreement.

Clinton testified at one point (R. 56) that prior to drawing up 
the written agreement he discussed with Horbick the terms of 
the agreement and it was agreed that (1) Horbick would build a 
house out of stone and (2) that Horbick would not transfer the 
property without the prior consent and approval of the Clintons. 
Clinton, at another point, testified (R. 56) that said oral agree­
ments were entered into at the time that the written agreement 
was drawn up. Assuming that such antecedent or contemporane­
ous oral agreements are proved by this record, the agreement as 
finally written must be accepted as the final understanding of the 
parties as such agreements are deemed merged in the written 
agreement.

Galpin v. Atwater, supra;
Fitch v. Woodruff, supra;
Dean v. Mason, supra;
Barber v. Brace, supra;
See, O’Loughlin v. Poli, supra at 432.

C. Any proved subsequent oral agreement must be in writing 
and supported by separate consideration.

Clinton testified at another point (R. 57) that the oral agree­
ment regarding transfer of interest in the written agreement was 
made subsequent to the written agreement, i.e. at the time that 
Horbick indicated that he wished to sell the property. Assum­
ing that the testimony proves such subsequent agreement, such 
an agreement having to do with the sale and transfer of real 
property is required by the Statute of Frauds to be in writing and 
to be signed by the party to be charged.

General Statutes of Connecticut, Rev. of 1949, Vol.
I l l ,  Chap. 412, Sec. 8293;

Utley v. Nolan, supra;
Gendleman v. Mongillo, supra.

It must also be supported by separate consideration.

See, Nagel v. Modern Investment Corp., supra;
See, O’Loughlin v. Poli, supra.



10

There was no separate consideration for the alleged oral agree­
ment not to transfer without the prior consent and approval of 
the Clintons and none was alleged or proved by the appellees.

D. Extrinsic parol evidence may not be introduced to vary, 
contradict, or add to the terms of such an agreement or to 
explain the plain and unambiguous meaning of its provi­
sions.

Samuel Clinton testified that the provision in the agreement 
whereby the parties agreed that the instrument was not to be filed 
or in any way made a matter of public record meant that Horbick 
agreed (1) to build a house of stone and to commence construc­
tion thereof within a reasonable time, and (2) to first receive the 
consent and approval of the Clintons before transferring his inter­
est in the contract. That this provision in the contract could have 
such a meaning is so illogical and far-fetched as to be clearly 
beyond the realm of credibility of reasonable men. The provision 
itself is not ambiguous. Neither is there a word in the provision 
which is ambiguous. Therefore the necessity for explanation is 
lacking. Only if the provision itself had been ambiguous, or a 
word in this provision had been ambiguous, could parol evidence 
be admissible to explain its meaning.

Adams v. Turner, supra;
Glendale Woolen Co. v. Protection Ins. Co., supra.

If Clinton’s testimony is accepted as the meaning of said 
provision, then it is an explanation which treats of two sub­
jects not mentioned in the contract. In Gendleman v. Mon- 
gillo, supra, the court held that only those subject-matters 
about which the contract treats are subject to parol evidence to 
explain and give effect to the terms of the contract.

If such an explanation of this provision of the contract is ac­
cepted, it would vary the terms of the contract to such an extent 
as to contradict the contract as written. The contract as written 
makes absolutely no mention of an agreement on the part of Hor­
bick to build a house of stone and to commence construction thereof



11

within a reasonable time. Thus the contract as written permits 
Horbick to leave the lot vacant without building a house of wood, 
stone, stucco, or of any other description. Neither does the con­
tract make any mention whatsoever of the right to transfer or not 
to transfer interest in the agreement. The contract as written 
leaves Horbick free to transfer or not to transfer his interest in 
the agreement as he sees fit. To interpret the contract to mean 
that Horbick could not transfer his interest in the agreement with­
out first obtaining the consent and approval of the Clintons would 
contradict the agreement as written and would, in effect, substi­
tute an entirely different contract from the one entered into by 
the Clintons and Horbick. A written contract for the sale of land 
which leaves the vendee free to transfer his interest in the con­
tract is manifestly different from a written contract for the sale 
of land which does not leave the vendee free to transfer his 
interest.

The law of this state is that parol evidence which varies, adds 
to, or contradicts the terms of a contract within the Statute of 
Frauds or which purports to explain its clear and unambiguous 
terms is not admissible.

Nagel v. Modern Investment Corp., supra;
Gendleman v. Mongillo, supra;
Sweeney v. Sweeney, 125 Conn. 391 (1940) ;
In re Fisk’s Appeal, 81 Conn. 433 (1908) ;
Schindler v. Muhlheiser, 45 Conn. 154 (1877);
Purcell v. Burns, 39 Conn. 429 (1872);
Collins v. Tillou, 26 Conn. 368 (1857);
Baldwin v. Carter, 17 Conn. 201 (1845);
Brown v. Slater, 16 Conn. 192 (1844).

D. The Finding of the Jury Is Not Supported By the Weight 
of the Evidence.

The jury found as a fact that there was an understanding be­
tween the Clintons and Horbick that Horbick should first obtain 
the consent and approval of the Clintons before transferring his 
interest in the agreement to any person or persons. This finding



12

was not supported by the weight of the evidence (R. 38-40, 57-60, 
65). Clinton testified that he told Horbick at all times that he 
would not consent to the transfer of the property to Negroes and 
that his primary reason for not giving a deed to Horbick was be­
cause Horbick sought to transfer the property to a Negro (R. 58, 
60, 63, 65, 66). Horbick testified that Clinton stated at all times 
he would not approve of the transfer of the property to Negroes 
(R. 34, 41, 70), but denied that there was a general agreement 
which was a term and condition of the contract not to transfer to 
any person or persons without the consent and approval of the 
Clintons (R. 34, 39, 40, 41, 46). Clinton never denied that he 
told Horbick that he could transfer to someone like himself, mean­
ing Horbick (R. 32, 36, 46). Clinton never clearly denied that he 
told Horbick that he would never transfer to Jewish people (R. 
44, 46, 59, 62, 63).

The evidence, therefore, is clearly not that there was a general 
agreement that the property should not be transferred to anyone 
without the prior consent and approval of the Clintons, but rather 
a specific one that the property would not be transferred to a mem­
ber of specified racial and religious groups. When Clinton learned 
that Horbick was contemplating transferring the property to a 
Negro, he advised Horbick very specifically that he did not want 
Negroes to have the property. The evidence clearly is that the 
refusal of Clinton to give a deed to Horbick was not the result of 
the fact that Horbick sought to transfer to anyone without prior 
consent and approval of the Clintons but that Horbick sought to 
transfer the property to Negroes (R. 65).

The jury, therefore, erroneously found that there was a general 
agreement not to transfer interest to anyone without the prior 
consent and approval of the Clintons.

In Nagel v. Modern Investment Corp., supra, the court said 
at pages 700-701:

“But if the evidence is admitted over objection or with­
out objection, the question still remains for decision by the 
court whether, under the circumstances of the particular



13

case, any agreement extrinsic to the writing even if proved, 
can, in law, be effective to add to, subtract from, or vary 
the terms of the writing,” Citing cases from other states 
and one authority) ;

“The determinative question is whether there is testimony 
upon which the jury could reasonably find that the parties 
intended to supplement their written contracts by a con­
temporaneous oral agreement . . . The plaintiffs in the 
instant case were required first to produce evidence upon 
which the jury could reasonably find that to be so.”

The testimony in this case is insufficient to warrant a finding by 
the jury that Horbick intended to supplement the written agree­
ment by the oral agreement. On the contrary, the undisputed 
testimony shows that Horbick received legal aid and advice regard­
ing his right to transfer under the agreement as written and acted 
in accordance therewith (R. 46).

The court below had the discretion to accept or reject the 
finding of the jury.

Finnegan v. LaFontaine, 122 Conn. 561, 567 (1937);
Dzubin v. Dzubin, 121 Conn. 646, 649 (1936).

In view of the testimony, the court below should have rejected 
the finding of the jury as not supported by the evidence.

Under the rule laid down in the Nagel case, the court was 
under a duty, despite the finding of the jury, to decide whether, 
under the circumstances of this particular case, the agreement 
extrinsic to the writing, even if proved, could in law be effective 
to add to, subtract from, or vary the terms of the writing. In 
accordance with this, the court below should have of its own 
motion set aside the finding of the jury as insufficient in law.



14

II.

The written agreement, specific performance of which was 
sought in the court below, could not be reformed in equity 
to incorporate any oral agreement which is avowedly designed 
to effectuate private racial discrimination, and, as so re­
formed, be rescinded by judicial decree when the intended 
effect of same is to defeat the otherwise valid right of a 
third person solely because of the race and color of such 
person.

As pointed out above, the evidence in this case is not that 
there was an understanding between the Clintons and Horbick 
that the property should not be transferred to any person or 
persons without the prior consent and approval of the Clin­
tons, but an agreement that the property should not be trans­
ferred to Negroes. But even assuming that there was a gen­
eral agreement not to transfer to anyone without prior consent 
and approval of the Clintons, the testimony shows conclu­
sively that the express purpose of such an agreement was to 
give effect to private racial discrimination (R. 56, 65-66). 
Knowing that the express purpose for seeking to have the con­
tract reformed to incorporate an agreement that interest in the 
contract should not be transferred to any person or persons 
without the prior consent and approval of the Clintons was to 
give effect to private prejudices against certain racial groups, 
the court below nevertheless reformed the contract to include 
such an agreement and then rescinded the contract for breach of 
said agreement. But the court below was powerless to do so since 
its ability to reform or rescind a contract is proscribed by the 
prohibitions of the Fourteenth Amendment to the Federal 
Constitution, the guarantee of equal rights of the Constitution 
of this State, the laws of the United States, and the public 
policy of the United States and of this State.

Shelley v, Kraemer and Sipes v. McGhee, supra;
Hurd v. Hodge and Urciolo v. Hodge, supra;
Clinton v. Puente, supra;
Roberts v. Curtis, supra;



15

Correll v. Farley, supra;
State of Conn, ex rel. Brush v. Sixth Taxing District,

supra.
A. The Prohibitions of the Fourteenth Amendment to the Fed­

eral Constitution.

That the Fourteenth Amendment to the federal constitution 
prohibits state action, whether it be action by the state’s legis­
lative, judicial or administrative arm, which discriminates 
against any person within the state’s jurisdiction solely be­
cause of the race or color of such person is no longer open to 
question. Virginia v. Rives, 100 U. S. 313, 318; Ex parte 
Virginia, 100 U. S. 339, 347; Patton v. Mississippi, 332 U. S. 
463; Irvin v. Florida, 341 U. S. 50; Civil Rights Cases, 109 
U. S. 3, 11, 17; Nixon v. Herndon, 273 U. S. 536; Nixon v. 
Condon, 286 U. S. 73; Smith v. Allwright, 321 U. S. 649; 
Buchanan v. Warley, 245 U. S. 60; Takahashi v. Fish & Game 
Commission, et al., 334 U. S. 410; Oyama v. California, 332 
U. S. 633; Sweatt v. Painter, 339 U. S. 629; McLaurin v. 
Board of Regents, 339 U. S. 637; Alston v. School Board of 
City of Norfolk, 112 F. (2d) 992, cert. den. 311 U. S. 693. 
Thus the question here is whether the action of the court below 
is such state action as is prohibited by the Fourteenth Amend­
ment.

The court below reformed a private contract. In its Judgment, 
the court stated that it reformed the contract to incorporate the 
alleged oral agreement “so as to state the true intent and meaning 
of the parties to the same” (R. 11). But what was the true 
intent and meaning of the parties? Samuel Clinton, the appellee 
who sought reformation in the court below, testified that the pur­
pose of the alleged oral agreement was to prevent the transfer 
of the property in question to persons of the type he considered 
undesirable (R. 56). That he considered Negroes, without qualifi­
cation, to be undesirable and that he intended, through the incor­
poration of the alleged oral agreement into the written agreement, 
to make possible his refusal to give his consent and approval to 
a transfer to a Negro, was testified to without equivocation (R. 
58-59, 63, 64, 65). In other words, that the express purpose of



16

the alleged oral agreement was to prevent the transfer of the prop­
erty to Negroes was never disputed. That the instant case is a 
case, not of attempted transfer to anyone, but of attempted trans­
fer to a Negro in violation of Clinton’s private prejudices cannot 
be denied. But in order to give effect to this purpose and in order 
to give effect to Clinton’s private prejudices, it was absolutely 
necessary for Clinton to invoke the aid of the judicial arm of the 
state—the court below. Clinton therefore filed a cross complaint 
for reformation and to rescind the contract in appellants’ suit for 
specific performance against Clinton. The question therefore 
arises whether state action of this kind, i.e., reformation of a con­
tract to include a provision avowedly designed to effectuate pri­
vate racial discrimination, is prohibited state action.

In Shelley v. Kraemer and Sipes v. McGhee, supra, the 
United States Supreme Court considered the question whether 
prohibited state action was involved in state court enforcement of 
a private racial restrictive covenant. In those cases, the court 
squarely held that state court enforcement of such private agree­
ments is state action which is prohibited by the equal protection 
clause of the Fourteenth Amendment to the Federal Constitution. 
In arriving at this conclusion, the Court expressly recognized that 

. . the particular patterns of discrimination and the areas in 
which the restrictions are to operate, are determined, in the first 
instance, by the terms of agreements among private individuals.” 
The Court also recognized that the Fourteenth Amendment 
affords no protection against discrimination by private individuals 
unaided by the state, and that such agreements, standing alone, 
do not violate any rights secured by the Federal Constitution. 
However, the crucial fact which brought to bear the prohibitions 
of the Fourteenth Amendment was that participation by the state 
was necessary to give effect to the purpose of the agreements. The 
Court said, at pages 13-14:

“These are cases in which the purpose of the agreements 
were secured only by judicial enforcement by state courts 
of the restrictive terms of the agreements.”



17

In those cases, as in the instant case, the undisputed facts dis­
closed that the petitioners (appellants) were willing purchasers of 
the properties and that the person (Horbick) against whom 
enforcement of the covenants (oral agreement) was sought were 
willing sellers and that contracts of sale had in each case been 
consummated. The Court concluded, at page 19, that,

. . but for the active intervention of state courts, 
supported by the full panoply of state power, petitioners 
would have been free to occupy the properties in question 
without restraint.”

The same is true in the instant case. That the situation in the 
instant case is identical with the situation in the restrictive covenant 
cases is made amazingly clear not only by consideration of the 
foregoing language of the Court, but by the following language of 
the Court at page 16 as well:

“These are not cases, as has been suggested, in which the 
States have merely abstained from action, leaving private 
individuals free to impose such discriminations as they see 
fit. Rather, these are cases in which the States have made 
available to such individuals the full coercive power of 
government to deny to petitioners, on the grounds of race 
or color, the enjoyment of property rights in premises which 
petitioners are willing and financially able to acquire and 
which the grantors are willing to sell.”

The court held that by granting judicial enforcement of the 
restrictive agreements in those cases, the states had denied peti­
tioners, who were not parties to the agreement but third parties 
against whom the discrimination was directed, the equal protection 
of the laws and that, therefore, such action on the part of the state 
could not stand. Here the action of the court below in reforming 
a contract to incorporate an oral agreement which was admittedly 
designed to effectuate private racial discrimination denied to appel­
lants, who were not parties to the oral agreement but third parties 
against whom the discrimination is directed, the equal protection 
of the laws since the appellants, because of the action of the court, 
have been denied the right to purchase the property in question



18

solely because of their race and color. In other words, but for the 
action of the court below in reforming and rescinding the written 
agreement, the appellants would have had been entitled to specific 
performance.

B. The Guarantee of Equal Protection of the Constitution of 
This State.

The Constitution of this State provides:

Article I

Section 1. “That all men when they form a social com­
pact, are equal in rights; . . .”

This provision has been held to have the same meaning as the 
equal protection clause of the Fourteenth Amendment to Federal 
Constitution.

State of Conn, ex rel. Brush v. Sixth Taxing District,
supra.

As indicated above, the Fourteenth Amendment to the Fed­
eral Constitution has been consistently held by the United States 
Supreme Court to mean that a state may not discriminate 
against persons solely because of race and color. As pointed out 
above, the action of the court below in reforming a contract to in­
corporate an oral agreement intentionally designed to effectuate pri­
vate racial discrimination is state action which violates the equal pro­
tection clause of the Fourteenth Amendment to the Federal Consti­
tution. Since the constitutional provision of this State guaranteeing 
equal rights has the same meaning as equal protection in the 
Federal Constitution, the action of the court below is likewise viola­
tive of the equal rights clause of the Constitution of this State.

C. The Laws of the United States.
The appellants’ right to acquire the property in question with­

out interference by the State is also protected by the laws of the 
United States. Title 8, United States Code, Section 42, provides:

“All citizens of the United States shall have the same 
right in every state and territory as is enjoyed by white 
citizens thereof to inherit, purchase, lease, sell, hold and 
convey real and personal property.”



19

This statutory provision has been held by the United States 
Supreme Court to be a restriction upon governmental action. 
Hurd v. Hodge and Urciolo v. Hodge, supra. Thus, the right 
to acquire an interest in real property is not only a civil right 
recognized as such by the highest court in the land and pro­
tected against discriminatory state action by the Fourteenth 
Amendment, Sipes v. McGhee and Shelley v. Kraemer, supra, 
but has also been reaffirmed by federal statute. This statute con­
fers upon every citizen of the United States the same right to 
purchase or acquire an interest in real property. The appellants 
herein are citizens of the United States. There can be no doubt 
that for the purposes of this statute the State of Connecticut is 
included within the phrase “every state and territory.” Thus the 
action of the court below in effectively denying the appellants the 
right to purchase the property in question solely because of the 
race and color of appellants also violates Title 8, U. S. C., Section 
42.

D. The public policy of the United States and of this State

The United States Supreme Court has held that federal 
governmental enforcement of private racial discrimination 
contravenes the public policy of the United States. Hurd v. 
Hodge and Urciolo v. Hodge, supra, In the Hurd case and in 
the Urciolo case, the court said at pages 35-36:

“We cannot presume that the public policy of the United 
States manifests a lesser concern for the protection of such 
basic rights against discriminatory action of the federal 
courts than against such action taken by the courts of the 
state.”

State court enforcement of private racial discrimination 
was held by the United States Supreme Court in Shelley v. 
Kraemer and Sipes v. McGhee, supra, to be violative of the 
Fourteenth Amendment to the Federal Constitution, but as in the 
case of federal governmental action, which is discriminatory on 
the grounds of race and color, we cannot presume that the public 
policy of this State manifests a lesser concern for the protection



20

of the basic civil right to acquire an interest in real property 
than in the case of discriminatory federal governmental action,

The United States Supreme Court said in Hurd v. Hodge 
and Urciolo v. Hodge, supra, that the “public policy of the 
United States” is manifest “in the constitution, treaties, federal 
statutes and applicable legal precedents.” So the public policy 
of this State with respect to racial discrimination is manifest in 
its constitution, statutes and applicable legal precedents.

Public policy as a concept of law has been succinctly defined as :

. . the principle of law that no one can lawfully 
do that which has a tendency to be injurious to the 
public or against the public good.”

Cahill v. Gilman (N. Y.), 84 Misc. 372.

Notwithstanding the seeming clarity of the principle, its method 
of application frequently remains obscured, particularly where 
statutory enactment on all phases of a given subject is either ab­
sent or so lacking in exactitude as to lead to the unsound conclu­
sion that public policy is not wholly formulated and that it is thus 
incapable of independently forming the basis of a decision.

The effects of the apparent indiscriminate intermingling of 
public policy with statutory law as one and the same, compel a 
detailed examination of the subject, if the error on this point 
in the judgment is to be seen. In making such an examination, 
the subject lends itself to a threefold classification, to wit:

(a) Public Policy as a concept, distinguished from the 
statutes upon which it is, in part, predicated;

(b) The application of public policy as an independent 
rule of law;

(c) The interaction of the public policy of Connecticut 
and the United States upon the case at bar.

We have taken the liberty of quoting at length from an appro­
priate portion of a scholarly opinion rendered in the state of Ohio.



21

In Pittsburgh, C., C. & St. L. Railway Co. v. Kinney, 95
Ohio St. 64, 115 N. E. 505 L. C. A. 1917 D 641, 643 (1916), 
Justice W anamaker, beginning at page 67, wrote:

“What is the definition of ‘public policy’? A correct 
definition, at once concise and comprehensive, of the words 
‘public policy’ has not yet been formulated by our courts. 
Indeed the term is as difficult to define with accuracy as 
the word ‘fraud’ or the term ‘public welfare’. In sub­
stance it may be said to be the community common sense 
and common conscience, extended and applied throughout 
the state to matters of public morals, public health, public 
safety, public welfare and the like. It is that general and 
well-settled public opinion relating to man’s plain, palpable 
duty to his fellow men, having due regard to all the cir­
cumstances of each particular relation and situation.

Sometimes such public policy is declared by constitu­
tion ; sometimes by statute; sometimes by judicial decision. 
More often, however, it abides only in the customs and 
conventions of the people—in their clear consciousness and 
conviction of what is naturally and inherently just and 
right between man and man. It regards the primary prin­
ciples of equity and justice and is sometimes expressed 
under the title of social and industrial justice, as it is con­
ceived by our body politic.

When a course of conduct is cruel or shocking to the 
average man’s conception of justice, such course of conduct 
must be held to be obviously contrary to public policy, 
though such policy has never been written into the bond, 
whether it be constitution, statute or decree of court.

It has frequently been said that such public policy is a 
composite of constitutional provisions, statutes and judi­
cial decisions and some courts have gone so far as to hold 
that it is limited to these. The obvious fallacy of such a 
conclusion is quite apparent from the most superficial 
examination.

When a contract is contrary to some provision of the 
constitution, we say it is prohibited by the constitution, not



22

by public policy. When a contract is contrary to statute, 
we say it is prohibited by statute, not by public policy. 
When a contract is contrary to a settled line of. judicial 
decisions, we say it is prohibited by the law of the land, but 
we do not say it is contrary to public policy. Public policy 
is the cornerstone—the foundation—of all constitutions, 
statutes and judicial decisions; and its latitude and longi­
tude, its height and its depth, greater than any or all of 
them. If this be not true, whence came the first judicial 
decision on matters of public policy ? There was no prece­
dent for it, else it would not have been the first.”

Public policy is greater than any specific statute or decision on 
a particular aspect of a given subject, for it represents the aggre­
gate, of which each statute or individual rule is but a component 
part. Yet, reluctance has frequently been expressed to regard 
public policy as a rule, apart and of itself, capable of forming the 
independent basis of a decision.

Much has been said by courts against judicial legislation. That 
the courts will not do what the legislature has not seen fit to do, 
has become a settled maxim and in many instances the facts jus­
tify such attitude on the part of the courts. But the question 
presents itself: “May a court proceed contrary to settled public 
policy solely because specific statutory prohibition is lacking?” 
And further: “Is not a court absolutely bound to apply the rule 
of public policy when the statute is silent?”

The latter question was expressly passed upon in a Cali­
fornia decision in 1944. In James v. Marinship Corporation, 
25 Cal. 2d 721, 155 P. 2d 329, 160 A. L. R. 900, the court held:

“The discriminatory practices involved in this case are, 
moreover, contrary to the public policy of the United States 
and this State. The United States Constitution has long 
prohibited governmental action discriminating against per­
sons because of race or color. 5th, 14th and 15th Amend­
ments. * * * Although the constitutional provisions 
have been said to apply to state action rather than to pri­



23

vate action, they nevertheless evidence a definite national 
policy against discrimination because of race or color. De­
fendants contend that ‘Individuals invasion of individual

rights’ can be prohibited only by a statute of the state and 
they point out that California statutes forbidding racial 
discrimination by private persons relate only to certain spe­
cifically enumerated businesses such as inns, restaurants 
and the like, but not to labor unions * * * The analogy 
of the public service cases not only demonstrate a public 
policy against racial discrimination but also refutes de­
fendant’s contention that a statute is necessary to enforce 
suck a policy where private rather than public action is 
involved.” (Italics added.)

It is evident that a decision consistent with a settled rule of 
public policy is not, in the absence of statutory mandate, usurpa­
tion of the legislative function. The lower court would not have 
been engaging in judicial legislation if it applied the public policy 
of this State to the case at bar, in the absence of express statutory 
direction, for as the statute is absent but the public policy is 
not, the court is under an equally affirmative duty to apply the 
latter rule.

In examining the remaining classification in this inquiry, namely 
the interaction of the public policy of this State and of the United 
States to the case at bar, it is necessary to avoid narrowing the 
subject to the right of a seller to select his own buyer and in 
doing so overlooking the principal issue, namely, race discrimina­
tion. Just as Connecticut has no public policy confined to bur­
glary, but rather to crime in all its aspects, one cannot divorce the 
purpose of the alleged oral agreement forming the basis of this 
action to reform from the overall question of racial discrimination.

It is either the policy of this state to oppose racial dis­
crimination wherever and however it manifests itself or, the 
State is so lacking in the formulation of a settled will as to 
have no policy on the subject at all. It thus becomes neces­
sary, if one is to consider the interaction of the public policy



24

of this state and of the United States on the case at bar, to 
ascertain first whether a public policy on the subject exists 
and, if so, its scope. As stated in Hurd v. Hodge and Urciolo 
v. Hodge, supra and numerous other decisions, the public 
policy may be determined largely by reference to the statutes in 
existence.

Connecticut has the following statutes currently in force, all 
aimed solely at eliminating racial discrimination, not only by gov­
ernmental agencies but by private individuals as well:

GENERAL STATUTES OF CONNECTICUT.

Revision of 1949.

Section 1349. Providing that public schools shall be open to all 
children without discrimination because of race.

Section 374. Prohibiting discrimination because of color in the 
state civil service.

Sections 7400-7407. Prohibiting discrimination in employment 
by private employers because of race, color, religious creed, na­
tional origin or ancestry.

Section 6140. Prohibiting discrimination between white persons 
and colored persons by life insurance companies.

Section 8375. Prohibiting discrimination on account of race, 
creed or color in every place of public accommodation, resort or 
amusement.

Section 8376. Prohibiting advertisement which ridicules or
holds up to contempt any person or class of persons on account 
of creed, religion, color, denomination, nationality or race.

Section 8374. Providing for fine or imprisonment of any per­
son who shall subject, or cause to be subjected, any other person 
to the deprivation of any rights, privileges or immunities, secured



25

or protected by the constitution or laws of this state or of the 
United States on account of alienage, color or race.

Public Act. No. 291, Acts of 1949. Amending Section 8375, 
supra, to include all public housing projects.

It cannot be said that these statutory expressions on the subject 
of racial discrimination do not emphatically declare the public 
policy of this State on the subject of racial discrimination.

A statute is not necessary to enforce a well-settled public policy 
where private rather than public action is involved and where the 
public policy is clear the deficiencies of positive law must be sup­
plied by the courts.

This is not judicial legislation, but rather the application 
of the policy of the law' on a given subject so as to effectuate 
and uphold the policy. This conclusion was affirmed in 
Camp-Of-The-Pines v. New York Times Co., 184 Misc. 389, 
where the Albany Special Term in passing upon the applicability 
of the New York Civil Rights law, Section 40, to a “restricted 
clientele” notice, held:

“Every effort is made, and should be made to prevent, so 
far as is humanly possible, social and economic ostracism.”

In summary, it may be said:

First: That the principle of public policy is not synonymous 
with any one statute but represents the policy of the law on a given 
subject as compounded from the Constitution and statutes taken 
together as a whole.

Second: That where the. policy of the law has been clearly 
formulated, a court is bound to effectuate this policy although no 
specific statute can .be pointed to as a basis for its decision,

Third: That a court is not legislating judicially when, in being 
called upon to enforce private prejudice which is repugnant to the 
settled public policy of the state, it refuses to do so.



26

■ Fourth: That the public policy of this State'and of the United 
States is on record as being unquestionably against racial dis­
crimination and admits of no exceptions, loopholes or excuses in its 
blanket condemnation.

The effect of the action of the court below in reforming the 
contract is clearly to discriminate against Negroes. Therefore, the 
action of the court below is clearly repugnant to the public policy 
of this State and of the United States.

The court below, upon reforming the contract between Clinton 
and Horbick to incorporate an alleged oral agreement which was 
designed to effectuate private racial discrimination, rescinded the 
contract presumably on the ground that the incorporated provi­
sion had been breached by Horbick (R. 11). Such a breach of 
contract could have no effect with respect to the rights of the 
appellants herein except for the action of the court below in 
rescinding the contract. Thus but for the action of the court 
below, in first reforming the contract to include the alleged oral 
agreement and then rescinding the contract, the appellants would 
have been entitled to specific performance of the contract. When 
it was shown to the court that the purpose of the alleged oral 
agreement was to effectuate private racial discrimination, the 
court below was under a duty to refrain from reforming the con­
tract and, if not, certainly to refrain from rescinding the contract 
on the ground that this provision of the contract had been 
violated. The appellees were not entitled to have the contract 
rescinded because as the United States Supreme Court said in 
Shelley v. Kraemer, supra, at page 22:

“The Constitution confers upon no individual the right 
to demand action by the state which results in the denial 
of the equal protection of the laws to other individuals. 
And it would appear beyond question that the power of 
the state to create and enforce property interests must be 
exercised within the boundary defined by the Fourteenth 
Amendment.”

In Correll v. Earley, supra, the Supreme Court of Oklahoma 
said in denying a judicial enforcement of a restrictive covenant:



27

“So we have this situation: the plaintiffs have a valid 
contract in protection of their home and property; the 
courts may not cancel the deed made to Negroes in viola­
tion of the contract because the application of the Federal 
rule deprives the courts of power to do so, or, in other 
words, the court must decline to cancel the deeds lest by 
so doing they conduct the state into an act of discrimina­
tion against its Negro citizen.”

In Roberts v. Curtis, supra, the court said in dismissing an 
action for damages for breach of a racial restrictive covenant at 
page 604:

“I construe the ruling of the Supreme Court as withhold­
ing any assistance by way of judicial action of any kind 
from the enforcement of such restrictive covenants.”

By rescinding the contract, the court below in fact and in effect 
defeated the right of the appellants to acquire the property in 
question solely because of the race and color of the appellants. 
No other reason, except race and color, was given by the ap­
pellees who invoked the power of the court below to defeat the 
right of the appellants. And since the action of the court below 
in reforming the contract and in rescinding the contract was un­
questionably state action, and since this state action had the result 
of discriminating against appellants solely because of their race 
and color, the action of the court below was such state action 
as is prohibited by the Fourteenth Amendment to the Federal 
Constitution, the guarantee of equal right of the Constitution of 
his State, the laws of the United States, and the public policy 
of the United States and of this State.



28

CONCLUSION.

The appellants respectfully pray that this court reverse the 
judgment of the court below for the reason set forth herein 
and direct the court below to enter judgment for the appel­
lants on their complaint.

Respectfully submitted.

The Appellants,
By J ohn W. N ewman, E sq.,

Their Attorney.
T hurgood Marshall,
Constance Baker Motley,

Of Counsel,