Rowe v. Cormier

• Citation: 456 A.2d 277,189 Conn. 371
• Court: Connecticut Supreme Court
• Decision Date: 01 March 1983
• Parties: Mia ROWE et al. v. Leo Paul CORMIER.

Page 277

456 A.2d 277

189 Conn. 371

Mia ROWE et al. v. Leo Paul CORMIER.

Supreme Court of Connecticut.

Argued January 13, 1983.

Decision Released March 1, 1983.

David M. Abbamonte, Bridgeport, with whom, on brief, was Jack Siedman, for appellants (plaintiffs).

Gerard P. Eisenman, Stratford, with whom, on brief, was Raymond W. Ganim, Stratford, for appellee (defendant).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

PER CURIAM.

The sole issue in this case is the enforceability by third party beneficiaries of a contract allegedly abandoned by the promisor and promisee. The plaintiffs, Mia Rowe, Elaine DiStasi, Edmund DiStasi, Lawrence DiStasi and Anthony DiStasi, brought an action seeking damages and the imposition of a constructive trust upon real and personal property of the defendant, Leo Paul Cormier. The trial court, after a full hearing, rendered a judgment for the defendant and the plaintiffs have appealed.

In its memorandum of decision, the trial court found the following facts. The plaintiffs were the children by a previous marriage of Margaret Cormier, the defendant's deceased wife. In 1970, as a result of marital difficulties, Margaret Cormier initiated divorce proceedings against the defendant. These proceedings were terminated when the parties reconciled. In connection with the reconciliation, Margaret Cormier and the defendant entered, on November 9, 1970, into the agreement which is the subject matter of this law suit. That agreement provided that real property at 286 Brooklawn Road, Stratford, and monies in unspecified savings accounts, all of which were then being held in the sole name of the defendant, should be transferred into the name of the defendant and Margaret Cormier jointly and in survivorship. The agreement also stipulated that Margaret Cormier and the defendant were to draw wills leaving the real property and the bank accounts to whichever one survived and thereafter one-half to the present plaintiffs and one-half to the defendant's nephew Edward Norris Cormier, Jr.

The trial court further found that, after execution of this agreement, the Cormiers resumed their married state and lived together until Margaret Cormier's death in 1978. No steps were ever taken by either of the Cormiers to perform or to compel performance of the agreement. The agreement was abandoned. At the time of Margaret Cormier's death, the agreement was no longer viable and enforceable. The plaintiffs therefore could not prevail in their 1979 action on this agreement.

The plaintiffs, on this appeal, argue that the trial court was in error in its conclusion that the agreement between Margaret Cormier and the defendant had been abandoned at the time of Margaret Cormier's death in 1978. The plaintiffs do not contest the well-established rule that rescission or abandonment of contracts, like entry into a contractual relation, depends upon the intent of the parties and that the relevant intent is to be inferred " 'from the attendant circumstances and conduct of the parties.' " Yale Co-operative Corporation v. Rogin, 133 Conn. 563, 568, 53 A.2d 383 (1947); Osborn v. Stevens, 132 Conn. 410, 414, 45 A.2d 160 (1945). Whether the parties have manifested an intention to modify or abandon their agreement is ordinarily a question of fact. First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402-403, 365 A.2d 1086 (1976). The plaintiffs can only prevail in their appeal therefore if they can sustain the burden of showing that the trial court's factual finding of abandonment was "clearly erroneous in view of the evidence and pleadings in the whole record." Practice Book § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435...