Nygren v. Potocek.

• Decision Date: 04 June 1947
• Citation: Nygren v. Potocek., 133 Conn. 649, 54 A.2d 258 (Conn. 1947)
• Court: Connecticut Supreme Court
• Parties: NYGREN et al. v. POTOCEK.

133 Conn. 649

54 A.2d 258

NYGREN et al.

v.POTOCEK.

Supreme Court of Errors of Connecticut.

June 4, 1947.

Appeal from Superior Court, Tolland County; Alcorn, Judge.

Action by Stanley K. Nygren and others against Anna Potocek for a decree for a conveyance of real estate by defendant to plaintiffs.The case was tried to the court.Judgment for defendant, and plaintiffs appeal.

No error.

Thomas J. Birmingham, of Hartford, for appellants.

John B. Harvey, of Willimantic, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiffs, under an assignment from Jules Rebillard, are seeking specific performance or damages based upon a bond for a deed executed to him by the defendant.The trial court rendered judgment for the defendant on the ground that the assignment was void because made on Sunday.The plaintiffs by their claims of law made at the trial and their assignment of error raise only two points: The first claim is that the trial court could not properly give judgment upon the ground that the assignment was invalid in view of § 5665 of the General Statutes which provides: ‘No person who shall have received a valuable consideration for a contract, express or implied, made on Sunday, shall defend any action upon such contract on the ground that it was so made, until he shall have restored such consideration’; and, secondly, they contend that the defendant subsequently ratified or affirmed the assignment.

Facts necessary for the disposition of the case may be briefly stated: The bond provided that, in addition to the initial payment by Rebillard, he should make monthly payments until the balance due on the purchase price was reduced to $1,500, and he was then to give a purchase-money mortgage to the defendant to secure that balance; the bond also contained a provision that if Rebillard failed to make the payments as provided in it, he should forfeit all claim to the premises and all money he had paid.He made the initial payment and certain of the periodic payments, which the defendant accepted, although they were sometimes late.He decided to sell his interest.On Sunday, March 3, 1946, at a meeting between an attorney for the named plaintiff, hereinafter called the plaintiff, and Rebillard, an assignment of the latter's interest to the former was drawn and executed, but it was dated the preceding Saturday.The assignment provided that the plaintiff would tender to the defendant the amount of the purchase price remaining due, and upon obtaining a deed, would pay Rebillard an agreed amount for the property; but if the defendant refused to give title or the plaintiff should be unable to enforce the bond by legal action, the agreement of assignment should be void.On the Sunday the assignment was made the plaintiff's attorney informed the defendant of it and told her that the plaintiff was prepared to pay the amount remaining due under the bond.The defendant refused to discuss the matter.The next day the attorney arranged with the defendant's husband that the parties would meet on March 12, 1946.On that day the plaintiff appeared, prepared to complete the transaction.The defendant also appeared but she refused to transfer the property and delivered to the plaintiff a writing in which she declared that because of certain defaults in the payments due under the bond, it was void and that she would retain the amounts paid as liquidated damages.Thereupon this action was brought.

The defendant appeared and filed an answer to the complaint, in which no claim was made that the assignment was void because made on Sunday.The finding, read in the light of the memorandum of decision, makes it clear that the defendant did not know that the assignment was made on Sunday until that fact appeared in testimony offered by the plaintiff at the trial.

Section 5665 was enacted in 1889.Public Acts 1889, Chap. 130.It is a reasonable assumption that it was an outgrowth of our decision in Grant v. McGrath, 56 Conn. 333, 336, 15 A. 370, where we held that an action...