Pierce v. Staub

• Decision Date: 04 January 1900
• Court: Connecticut Supreme Court
• Parties: PIERCE v. STAUB.

62 A. 760

78 Conn. 459

PIERCE

v. STAUB.

Supreme Court of Errors of Connecticut.

Jan. 4, 1900.

Appeal from Superior Court, Hartford County; John M. Thayer, Judge.

Action by Noble E. Pierce, as ancillary administrator of the estate of James M. Crosby, deceased, against Nicholas Staub. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank L. Hungerford and Frank W. Marsh, for appellant. Marcus H. Holcomb and Noble E. Pierce, for appellee.

TORRANCE, C. J. The plaintiff is the ancillary administrator, in this state, upon the estate of James M. Crosby, who died domiciled in Massachusetts in June, 1900. In May, 1897, the defendant and Crosby entered into a written contract for the sale to Crosby of certain property belonging to the defendant. The property consisted of certain shares of the capital stock of the Falls Village Water Company, of this state, of the charter and franchises of the New Milford Water Tower Company, of this state, and of certain rights in real estate, and in water rights, fully described in said contract. That contract provided in substance as follows: In consideration of certain payments made to him by Crosby, at and before the execution of the contract, and of the promises of Crosby contained in the contract, the defendant agreed to sell and convey to Crosby on or before the 1st of December, 1897, all the property aforesaid, "upon the faithful performance by Crosby" of his part of said contract. The purchase price of the property was $150,000. Of this price Crosby paid $3,000 before the contract was executed and in the contract he agreed to pay $10,000 upon its execution, $10,000 on or before July 1, 1897, and the balance on or before December 1, 1897. Mr. Crosby, not having made all the payments required by said contract, the parties on the 23d of February, 1899, entered into a supplemental contract in which it was agreed, among other things, as follows: (1) That the amount due and unpaid by Crosby under the first contract was $97,217; (2) that said amount should bear interest at the rate of 6 per cent. per annum from April 1, 1898; (3) that Crosby should pay said sum with interest as aforesaid in one year from February 23, 1899, or sooner in whole or in part at his option; (4) that upon such payment being made in full within such time, the defendant would sell and convey to Crosby all the property agreed to be sold and conveyed in and by both contracts; and (5) that the defendant should have the exclusive use and possession of all said property until it should be so conveyed. It was also agreed that these two contracts should evidence the entire understanding of the parties as to said property with one exception which need not here be noted. Neither of the contracts contained any forfeiture clauses of any kind, nor did they in terms give any power of rescission to either of the parties.

Crosby paid under both contracts the sum of $60,000 and no more. On February 27, 1900, while Crosby was confined to his bed by a serious illness, the defendant called upon him, and informed him that he (the defendant) was then ready to carry out said agreement. Crosby said he was then unable to perform his part of the agreement, and asked for an extension of time. Upon Crosby's promising to pay a certain note of his made to the defendant and then in the hands of a third party, the defendant agreed to extend the time for performance of the contracts for a period of 30 days from February 23, 1900. Crosby never paid that note nor any part of it, nor did he carry out his part of the contract, nor tender performance thereof within the extended time so given him by the defendant. On March 20, 1900, the defendant sent to Crosby a written notice of which the following is a copy: "My Dear Sir: I beg to say that I am ready to perform on my part our agreements of May 8, 1897, and February 23, 1899, by conveying, transferring, and assigning to you all the property therein mentioned, in accordance with the terms of said agreements, and as you know, have been ready and willing to do so at all times since the dates thereof. Inasmuch as the extended time for carrying out said agreements on your part expired nearly a month ago (February 23, 1900), and I cannot compatibly with my own rights and my purposes with regard to said property allow the matter to remain open indefinitely, I hereby request that without further delay you make the payments agreed by you to be made as fixed and determined in said last-named contract, and you may consider this a demand therefor. Please take notice that unless said agreements are performed and said payments made on or before the 31st day of March, 1900, I shall regard and treat said property as divested of all interest which you may now have [if any] therein. If not convenient for you to come here, I will, on notice from you, meet you in New York any day this week or next week, for the purpose of mutually carrying out our engagements in said contracts made." Nothing further was heard by the defendant from Crosby, after giving said notice, and nothing was done by Crosby with reference to said contracts, except that he endeavored, until he became too ill to do business, to dispose of the property and to raise money upon the contracts to pay the balance due thereon. Nothing else save the giving of said notice was ever done by the defendant in the lifetime of Crosby to put him in default under said contracts or to terminate his rights of purchase thereunder. Crosby died in June, 1900. He never made demand upon the defendant for the payment of the whole or any part of the money paid under the contracts, nor did he, after March 31, 1900, make any claim to the defendant that he (Crosby) had any rights in the property described in the contracts; but he did make such claim to his wife and brother a few days before he died. Up to March 31, 1900, the defendant was ever ready and willing to carry out his part of said contracts, but no offer or tender of performance was ever made by Crosby or by any one in his behalf, or, since his death, on behalf of his estate. On the 27th of June, 1900, the widow of Crosby called upon the defendant to ascertain the amount due under the contracts, and whether she could have time in which to pay it. The defendant then informed her that as her husband's time for performance had expired, his heirs had no interest in the property; but said that if the amount due was paid within 30 days then next ensuing, he would, unless the property was sold within that time before the payment was made, convey the property to Mr. Crosby's heirs. He requested her to write him next day as to whether she could raise the money. This she did not do, nor did she or any one else thereafter ever tender performance on behalf of the Crosby estate. After this, but exactly when did not appear, the defendant sold all of said property to a third party. Such sale appears to have been made some time in 1902. In September, 1900, the widow of Crosby was appointed and qualified as administratrix upon his estate, and in February, 1903, the plaintiff was in this state appointed and qualified as ancillary administrator of said estate. Demand upon the defendant, for the repayment of the money paid him by Crosby under the two contracts, was made by the administratrix in January, 1903, and by the plaintiff in February, 1903. The defendant refused to pay. The defendant until he sold said property was in the sole and exclusive use and occupation thereof. The defendant did not in this case, by his pleadings or otherwise make any claim for damages on account of the default of Crosby under said contracts.

Upon these facts the defendant made divers claims of law, which in substance and effect amounted to this: That the plaintiff was not entitled to recover back the money paid by Crosby either in whole or in part; in other words, that upon Crosby's default the defendant became entitled, at his option, to keep the property and the purchase money too....