S. H. V. C. v. Roy

• Decision Date: 28 September 1982
• Court: Connecticut Supreme Court
• Parties: S.H.V.C., INC. v. Robert ROY.

Page 351

450 A.2d 351

188 Conn. 503

S.H.V.C., INC. v. Robert ROY.

Supreme Court of Connecticut.

Argued March 3, 1982.

Decision Released Sept. 28, 1982.

Bruce S. Beck, with whom, on brief, was Jon D. Berman, Manchester, for appellant (defendant).

Richard S. Conti, with whom, on brief, was Jerome I. Walsh, Manchester, for appellee (plaintiff).

Before SPEZIALE, C. J., and PETERS, HEALEY, ARMENTANO and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant, on the granting of certification, has appealed to this court from the sustaining, by the Appellate Session of the Superior Court, of the judgment of possession rendered in this summary process action by the Housing Session of the Superior Court at Hartford.

He claims (1) that the trial court and the Appellate Session erred in holding that a party to a contract who has continually waived the other party's habitual breach in performance may declare a forfeiture upon a subsequent breach of the same condition, relying upon a clause of the contract allowing the forfeiture "notwithstanding any prior waiver," and (2) that a nonwaiver of forfeiture clause is not an effective bar to the defenses of waiver and estoppel upon a claimed forfeiture where the conduct which gives rise to the forfeiture is the same conduct which engendered the waiver or estoppel.

The trial court filed a memorandum of decision which made the following findings: The plaintiff rented to the defendant certain premises in a building on Main Street in Manchester for use as a billiard parlor for a ten year term commencing July 1, 1976. The monthly rent was payable in advance on the first day of each month with a ten day grace period. The written lease also contained a clause which specifically conferred upon the plaintiff the right to evict the defendant upon the breach of the defendant's obligation to pay monthly rent on or before the tenth day of any month, "notwithstanding any former waiver." The rent was paid on time through October of 1977, and for the period of November, 1977, through February, 1978, only three rent checks were offered. After the plaintiff had failed to receive the rent due on November 1, 1979, he caused a notice to quit to be served on the defendant on November 16, 1979. A check from the defendant for the November rent was later received by the plaintiff in the mail. Although the check was dated November 10, 1979, the envelope in which it was enclosed was postmarked November 19, 1979. It is uncontested that the defendant paid his rent tardily on many occasions prior to November, 1979.

Both issues set forth by the defendant in this appeal arise from the following portion of the lease agreement: "These presents are upon the express condition that if the Tenants ... shall be in default in the payment of ... rent ... more than ten (10) days, ... Landlord at its option, shall have the right (notwithstanding any former waiver ) to give written notice to Tenant ... that Tenant shall vacate the leased premises." (Emphasis added.)

The defendant first claims that the underlined phrase, the nonwaiver clause, should be rendered wholly ineffective as a matter of law. In support of this position he relies on 3A Corbin, Contracts § 763 which provides in pertinent part: "Parties to a contract can not, even by an express provision in that contract, deprive themselves of the power to alter or vary or discharge it by subsequent agreement.... In like manner, a provision that an express condition of a promise or promises in the contract can not be eliminated by waiver, or by conduct constituting an estoppel, is wholly ineffective. The promisor still has the power to waive the condition, or by his conduct to estop himself from insisting upon it, to the same extent that he would have had this power if there had been no such provision."

There is no indication that the parties to the above-cited contract have attempted to deprive themselves of the "power to alter or vary or discharge it by subsequent agreement." Thus the referenced portion of Corbin's treatise is not applicable to this case. There is nothing to prevent the parties from modifying the contract by the same means or method as it was written. Notably it is a ten year lease and comes within the statute of frauds. Presumably a material alteration of the terms would be in writing. The defendant's assertion that the clause is "wholly ineffective" because it prevents the parties from exercising their rights to alter or rewrite a contract wrongly applies the law to the facts of this case as the Appellate Session explained. ¹ The nonwaiver clause at issue has the effect of assuring that certain conduct, such as forebearance, may not carry the legal consequences which might ensue absent prior agreement. See 3A Corbin, Contracts § 763. This is not contrary to the law stated in the treatise.

At oral argument the defendant asserted that as a matter of law any prior notice of the landlord's intent to enforce the previously unenforced contract provision would effectively invalidate the defendant's waiver defense. He suggested that a note or conversation would suffice. It is the court's belief that the contract clause at issue, "notwithstanding any former waiver," which the trial court found to be clearly bargained for by the parties, provided just such a warning.

The defendant urges the court to adopt what he deems to be the "better law of foreign jurisdictions." He relies on two cases, Fritts v. Cloud Oak Flooring, 478 S.W.2d 8, 14 (Mo. Ct. App. 1972), and Fisher v. Tiffin, 275 Or. 437, 551 P.2d 1061, 1063 (1976), to support his theory that the nonwaiver clause is wholly ineffective. Even if this court were inclined to follow the cited law, it need not do so since the cases the defendant relies upon are readily distinguishable. One, a mortgage foreclosure; Fisher v. Tiffin, supra, 275 Or. 437, 551 P.2d 1061; where giving effect to the nonwaiver clause would result in a much harsher result than in the present case, is a situation where courts are traditionally more lenient; the other, a common law forfeiture under Missouri law, is a situation where one party requested a remedy that the court indicated was far more extreme than the ordinary statutory forfeiture. Fritts v. Cloud Oak Flooring, supra, 12. In circumstances characterized by extreme remedies, harsh dealing or unequal bargaining positions it has been noted that "[t]he anxiety of the court to find a waiver or an estoppel increases in proportion to the extent and inequity of the forfeiture." 3A Corbin, Contracts § 754. In this case there are no facts which indicate unequal bargaining positions or sharp dealing by either party.

Simply stated, as evidenced by the contract, the parties agreed that the landlord could void the lease upon the occurrence of certain events. The contract specifically stated, by the nonwaiver clause, that forebearance of the landlord on one or more occasions did not indicate he intended to relinquish his rights on subsequent occasions. To find, as the defendant urges, a result directly contrary to the literal contract terms would make it virtually impossible for parties to plan or express their relationships. Since we view forebearance, as evidenced in this case, to be an act for the defendant's own benefit, we cannot predicate an estoppel in favor of one who is a wrongdoer in the sense that he has consistently violated the terms of the agreement. The defendant's reasoning would have us punish such an act and reward the wrongdoer. The defendant claims that he relied on the plaintiff's forebearance to his detriment. This is balanced by the plaintiff's justifiable reliance on the written contract which stated that forebearance would not result in the relinquishment of his rights. Accordingly, there is no reason in either law or equity for invalidating the nonwaiver clause.

The second issue raised in his appeal is the defendant's claim that a nonwaiver of forfeiture clause is not an effective bar to the defense of either waiver or estoppel when the conduct giving rise to the forfeiture is that which engendered the estoppel. The defendant does not brief his assertion that the waiver defense is valid in this context. Therefore, the court may consider the issue abandoned. O'Connor v. Dory Corporation, 174 Conn. 65, 70, 381 A.2d 559 (1977); State v. Grasso, 172 Conn. 298, 300, 374 A.2d 239 (1977). In his discussion of the second issue the defendant assumes that the waiver defense is unavailable, yet he contends that the estoppel defense remains. To argue thus, the defendant must distinguish between waiver and estoppel. For authority to establish that estoppel may defeat a valid nonwaiver clause even though the waiver defense is thereby eliminated, the defendant relies on Hoffman Wall Paper Co. v. Hartford, 114 Conn. 531, 159 A. 346 (1932). The Hoffman court described the nonwaiver clause before it as follows: "The lease contained a provision that, after default made in any of its covenants, the acceptance of rent and failure to re-enter by the lessor should not be held to be a waiver of the right to terminate the lease and that the lessor might re-enter and take possession of the premises the same as if no rent had been accepted after the default.... The agreement was an unusual one, but we know of no reason why it was not valid.... The effect of it would be that, after default once occurred, the lease became in the absence of an estoppel, one terminable at the will of ... [the landlord]." Hoffman, supra, 536-37, 159 A. 346. The defendant in his brief claims that this provision "makes it clear that even where a nonwaiver clause is found to be valid, the facts may still support an estoppel which would defeat the effect of such a clause." The defendant admits that the reference to estoppel is dictum yet this is his sole authority for the claim that the nonwaiver clause does not defeat both the defenses of waiver and estoppel. The Hoffman cou...