Lunde v. Minch

• Decision Date: 05 March 1927
• Citation: Lunde v. Minch, 105 Conn. 657, 136 A. 552 (Conn. 1927)
• Court: Connecticut Supreme Court
• Parties: LUNDE ET AL. v. MINCH ET AL.
• Writing for the Court: MALTBIE, J.

136 A. 552

105 Conn. 657

LUNDE ET AL. v. MINCH ET AL.

Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Court of Common Pleas, New Haven County; Walter M Prickett, Judge.

Action by Michael Lunde and others against James Minch and others for breach of written contract for the sale of real estate was tried to the court. Judgment for defendants, and plaintiffs appeal. Error, and new trial ordered, limited to the assessment of damages.

Joseph I. Sachs, Louis Sachs, and Manuel S. Sachs, all of New Haven for appellants.

Robert L. Munger, of Ansonia, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and WOLFE JJ.

MALTBIE, J.

This is an action brought to recover damages for a claimed breach of contract by the defendants in failing to perform an agreement to convey a certain lot of land. The contract was made April 28, 1925. It stated the agreement of the defendants " to convey by warranty deed said premises free and clear from all incumbrances except building lines if established (and) taxes for the current year" ; it acknowledged receipt of $100 paid upon the purchase price and provided for the payment of the balance, $1,400, in cash; and it stated:

" It is hereby agreed that the transaction shall be completed and the purchase price paid on or before the 1st day of June."

The obligation of the defendants to perform their promise to convey the premises free and clear of all incumbrances and the promise of the plaintiffs to pay the purchase price were--

" mutual and dependent covenants demanding of each of the parties readiness and willingness to perform, and requiring, as a condition of judicial enforcement or redress for breach at the complaint of either, such readiness and willingness on his part, or a showing of sufficient excuse for their absence." Stierle v. Rayner, 92 Conn. 180, 183, 102 A. 581.

The trial court has found that while the plaintiffs were ready, able, and willing to perform their obligations, they never did perform them or offer to do so, nor did they ever make demand upon the defendants to fulfill their obligations under the agreement; and this finding we take to include a failure of the plaintiffs to give that notice to the defendants of their readiness and ability to perform, which is tantamount to a tender of performance. Smith v. Lewis, 26 Conn. 110. That being so, it was incumbent upon the plaintiffs to show that they were excused from taking those steps which ordinarily would be necessary to put the defendants in default. Phillips v. Sturm, 91 Conn. 331, 335, 99 A. 689.

The excuse upon which the plaintiffs rely is the inability of the defendants to convey the premises free and clear of all incumbrances by reason of the existence of certain restrictions upon the use of the property. If, being aware of the restrictions upon the premises which would prevent their performance of their agreement, the defendants failed to remove them, and so continued unable to perform, any offer to perform by the plaintiffs would have been as unnecessary as it would have been unavailing, and so they would have been excused from making it. Soldate v. McNamara, 94 Conn. 589, 591, 109 A. 724. While we have usually been called upon to apply this principle in cases where there has been a rescission of the contract and the claim is for the recovery of money paid, yet it controls also in actions brought for breach of the agreement. Smith v. Lewis, 26 Conn. 110; Bugajski v. Siwka, 200 Mich. 415, 166 N.W. 863; McLeod v. Hendry, 126 Ga. 167, 171, 54 S.E. 949; 39 Cyc. 1544, 2089.

To the general principle there are, no doubt, exceptions, as where a defect unknown to both parties crops up at or after the time set for performance and equitable considerations dictate that the vendor be given a reasonable opportunity to remove it before a default can be claimed, or where the vendor is in a position forthwith to remove an existing defect upon the vendee making offer of performance. Marsh v. Holley, 42 Conn. 453. The case before us presents neither of these situations; the defect of which the plaintiffs complain was fully known to the parties before the time for the performance of the contract had expired, and yet the defendants did nothing to remove it even down to the time of trial some months later; and the test of a present ability to perform is not met where the power to remove a defect is conditioned upon the consent of a third party not then secured. Greene v. Barrett, Nephews & Co., 238 N.Y. 207, 211, 144 N.E. 503.

The lot in question was a portion of a tract which one Miles had laid out for development as a summer residential district. In the map filed in the town clerk's office he did not mention any restrictions to be imposed on the various lots comprising the tract, but in the deeds of most of them he inserted restrictions as to their use, including one against using them for other than dwelling house purposes. One Haskins bought a number of the lots, and later resold them, the deeds stating the same restrictions. A few of the lots in the tract were sold by Miles and Haskins without restrictions, the intent being to make it possible to erect upon them stores to accommodate those who built houses upon the other lots. The lot of the defendants was bought from Haskins and was one of those the use of which was...