Brauer v. Freccia

• Decision Date: 07 April 1970
• Citation: 268 A.2d 645,159 Conn. 289
• Court: Connecticut Supreme Court
• Parties: , 53 A.L.R.3d 427 Archibald A. BRAUER et al. v. Frank J. FRECCIA et al.

Page 645

268 A.2d 645

159 Conn. 289, 53 A.L.R.3d 427

Archibald A. BRAUER et al. v. Frank J. FRECCIA et al.

Supreme Court of Connecticut.

April 7, 1970.

John F. Lambert, Greenwich, for appellants (plaintiffs).

Howard C. Kaplan, Stamford, for appellees (defendants).

Before ALCORN, HOUSE, THIM, RYAN and SHAPIRO, JJ.

SHAPIRO, Associate Justice.

The plaintiffs sought to have conveyed to them certain realty in Greenwich pursuant to an option contained in a lease between them and the defendant Frank J. Freccia. The plaintiffs attempted to exercise this option, but the owners refused to convey. The plaintiffs then instituted suit in the Superior Court seeking an order directing the defendants to convey the property. The trial court concluded that they were not entitled to the relief sought and rendered judgment for the defendants. The plaintiffs have appealed to this court.

The plaintiffs claim that certain admitted or undisputed facts should have been included in the finding. To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614; Maltbie, Conn.App.Proc. § 158. That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. Practice Book § 628(a); Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; Maltbie, Conn.App.Proc. § 158. The plaintiffs here pointed merely to testimony as supporting their request for additions, and most of this testimony was contradicted. The plaintiffs are not entitled to any additions to the finding. Nor is there any merit to the plaintiffs' claim that certain material facts were found without evidence to support them.

The finding discloses the following facts. As a result of negotiations, the plaintiffs and the defendant-owner Frank J. Freccia entered into a lease dated August 28, 1962, concerning real estate in Greenwich. ¹ Subsequent to its execution Frank J. Freccia conveyed an interest in the property to Emily Freccia and Eugene Freccia. The plaintiffs paid $700 upon the signing of the lease in accordance with its terms. They paid all rents for the years 1962 and 1963; all rents for 1964, except for October; and all rents for 1965, except for November. In 1966 they paid rents for January, April, June, July, September, November and December. In 1967 they paid rents for January, February, March, April, May and July. As of April 1, 1967, they had failed to make seven monthly payments of $350 each, causing an arrearage of $2450. As of the date of the trial they had failed to make a further monthly payment of $350 thereby causing a total arrearage of $2800.

On April 18, 1967, the plaintiffs sent a written notice to the defendants stating that they wished to purchase the property under the terms of the option. The plaintiffs' attorney sent a letter dated August 10, 1967, referring to the plaintiffs' prior letter of April 18, 1967, and demanding a conveyance, to which the defendants never replied. The plaintiffs attempted to pay, by checks, the rent for the months of August and September, 1967, but the checks were refused and were returned by the defendants' attorney on September 8, 1967. In September, 1967, the defendants caused a notice to quit to be served on the plaintiffs, claiming nonpayment of rent. After this notice was served, the plaintiffs attempted to pay the rent for the months of October, November, and December, 1967, but these tenders were refused.

The court concluded that the payment of all rent due under the lease was a condition precedent to the plaintiffs' right to exercise the option to purchase; that the conduct of the defendants did not constitute a waiver of their rights and did not estop them from relying on the provision of the option which required prompt payment of the rent; that the failure to pay the rent for eight months, totaling $2800, was due to gross negligence; that the failure to pay rent when due was not the result of accident, mistake or illness; and that the plaintiffs were not entitled to equitable relief.

The plaintiffs assign error in the conclusions reached by the trial court. They are tested by the finding. Brockett v. Jensen, 154 Conn. 328, 331, 225 A.2d 190; Klahr v. Kostopoulos, 138 Conn. 653, 655, 88 A.2d 332. The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 238 A.2d 500; Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855.

' A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance.' Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481, 482. Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in the light of the circumstances surrounding the execution of the instrument. Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814; McIsaac v. Hale, 104 Conn. 374, 379, 132 A. 916; 5A Corbin, Contracts § 1175, p. 294; see also note, 115 A.L.R. 376, 377. Here the language is lucid and unambiguous in stating that the defendant Frank J. Freccia was obligated under the option clause 'if the Lessees shall have duly and punctually fulfilled all the provisions, agreements, covenants and conditions of this lease.' This language clearly indicates that the defendants' duty to comply with the terms of the option was conditioned upon the plaintiffs' punctual performance of their obligations under the lease. A tenant who fails to meet the named conditions of his lease defeats his right to rely on it when he makes an effort to purchase the property pursuant to the option in the lease. Lake Shore Country Club v. Brand, 339 Ill. 504, 522, 171 N.E. 494. The court was correct in concluding that, since the plaintiffs had failed to perform their obligations under the lease, the right to enforce the option to purchase was not in existence and the defendants were under no obligation to convey the property.

The plaintiffs argue that, despite their failure to make certain monthly rental payments, they can nevertheless enforce the option because the defendants took no steps to terminate the lease. They correctly claim that failure to pay rent does not automatically terminate a lease but that some definite, unequivocal action to accomplish that end must be taken by the lessor. Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720; Thompson v. Coe, 96 Conn. 644, 651, 115 A. 219. Thus, to end the plaintiffs' right to possession of the property the defendants would have been required to take some affirmative action to terminate the lease. The defendants,...