Makusevich v. Gotta

• Decision Date: 06 January 1928
• Citation: 107 Conn. 207,139 A. 780
• Court: Connecticut Supreme Court
• Parties: MAKUSEVICH v. GOTTA ET AL.

139 A. 780

107 Conn. 207

MAKUSEVICH v. GOTTA ET AL.

Supreme Court of Errors of Connecticut.

January 6, 1928

Appeal from Court of Common Pleas; Fairfield County; Joseph G Shapiro, Special Judge.

Action by Paul Makusevich against Paul Gotta and others to recover damages for alleged breach of contract to sell real estate tried to the court. Judgment for plaintiff for $747, and defendants appeal. No error.

J. Walter Scheffer, of Bridgeport, for appellants.

Daniel E. Brennan and Irving Elson, both of Bridgeport, for appellee.

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

MALTBIE, J.

The complaint alleges that the plaintiff and the defendants entered into a written agreement for the conveyance of certain real estate by the latter to the former; that the defendants owned the land in fee; that, on the day fixed in the agreement, the plaintiff made tender of performance, and demanded a conveyance; that the defendants have neglected and refused to execute it, and have continued in possession of the premises; and that the plaintiff is still ready and willing to make performance of his obligations under the agreement. The claim for relief, is: (1) A degree for a conveyance to, or a vesting of title to the land in, the plaintiff; (2) $1,500. The judgment awarded substantial damages to the plaintiff as sole relief.

The allegations of the complaint were adapted to sustain either a cause of action for specific performance or one for damages for breach of the agreement. It was entirely proper to state the facts in a single count as a basis for a claim for either relief. General Statutes, § 5636; Trowbridge v. True, 52 Conn. 190, 197, 52 Am.Rep. 579; Knapp v. Walker, 73 Conn. 459, 461, 47 A. 655; McMahon v. Plumb, 90 Conn. 281, 285, 96 A. 958. As the claims were necessarily inconsistent, it would have been better practice to have stated them in the alternative (see Practice Book, page 426, form 241); but no objection was made upon this ground. The contention of the defendants in the trial court that, by adopting this mode of pleading, the plaintiff waived any claim of damages for breach of contract, is obviously not sound; and their claim before us that a court of equity will not retain a bill for specific performance merely in order to grant damages for a breach of the contract overlooks the fact that the complaint sets up a good cause of action for damages at law. " Under existing procedure, causes of action, whether legal or equitable, and whatever their nature, are stated in one form of complaint, and judgment may be rendered for the relief demanded upon any right of action which the facts alleged in the complaint are sufficient in law to support." Cole v. Jerman, 77 Conn. 374, 383, 59 A. 425, 429.

The only other ground of error claimed is in the measure of damages applied by the court. It awarded damages based upon the difference between the contract price and the value of the property agreed to be conveyed. In Wells v. Abernethy, 5 Conn. 222, 227, this court had before it the question of the measure of damages for the breach of a contract to convey real estate contained in an agreement for an exchange of lands, where the plaintiff had fully performed, and it said:

" The rule of damages on the breach of an express contract, has long been established; and whether it relates to real or personal estate, it necessarily must be the same. Whenever a person, on legal consideration, agrees to do a certain act, and in the event of his not doing it, the damages are not stipulated by the parties, the law, on the ground of reason and natural justice, implies,

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