Gilson v. Boston Realty Co.

• Decision Date: 20 July 1909
• Citation: 73 A. 765,82 Conn. 383
• Court: Connecticut Supreme Court
• Parties: GILSON v. BOSTON REALTY CO.

73 A. 765

82 Conn. 383

GILSON

v. BOSTON REALTY CO.

Supreme Court of Errors of Connecticut.

July 20, 1909.

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Action for money had and received by Margaret Gilson against the Boston Realty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Clitus H. King and John W. Banks, for appellant.

Phelan & Phelan, for appellee.

RORABACK, J. This action grows out of a written contract under seal, dated August 1, 1906, by which the defendants (a copartnership composed of two members) agreed to sell and convey to the plaintiff certain real estate for $294. Twenty-five dollars of the contract price was paid upon the execution of the written agreement, and the balance was to be paid in installments of $5 per week. October 7, 1906, the plaintiff was further credited with $16 of the contract price. The agreement provided that, if she failed to pay any of the stipulated installments for 30 days after it fell due, the agreement to sell should become void as the option of the defendant, who should be thereupon released from all obligations thereunder, but have the right to retain for their own use, as liquidated damages, all moneys previously paid by her. Upon several occasions before and after the payment of the $10 the defendants told the plaintiff that she need not make the payments weekly, and that she might pay at her convenience, unless the defendants notified her that payment was required. The plaintiff at all times intended to pay for the real estate, and was able to do so, and would have carried out the agreement if she had not been misled by these statements of the defendants. The defendants did not notify her that they desired her to make payments, or that they exercised their option to be released from their obligations, but sold the land to another person. The plaintiff, hearing of the sale, tendered the defendants the balance due under the contract, and demanded a deed, or the return of the $41. The tender was made in a short time after the plaintiff knew of the sale. The defendants refused to deed the land, or to return the money. The defendants admit receiving the money, but contend that the plaintiff had forfeited all rights under the contract by a failure to make payment of the installments when they became due. The agreement further provided that no modification or waiver of any term or condition thereof should be alleged or set up, or be of any force or...