Schneidau v. Et Ux.

• Decision Date: 26 July 1944
• Court: Connecticut Supreme Court
• Parties: SCHNEIDAU v. MANLEY et ux.

131 Conn. 285

39 A.2d 885

SCHNEIDAU

v.MANLEY et ux.

Supreme Court of Errors of Connecticut.

July 26, 1944.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, Fairfield County; Munger, Judge.

Action by T. Harold Schneidau, Jr., against William F. Manley and wife for specific performance and damages under an alleged agreement to convey realty to the plaintiff. The case was tried to the court. Judgment for defendants, and plaintiff appeals.

Error and new trial ordered as to the named defendant. The named defendant filed a motion for reargument which was denied.

Ernest L. Josem, of South Norwalk, for appellant (plaintiff).

William F. Tammany, of South Norwalk, for appellees (defendants).

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

BROWN, Judge.

The plaintiff brought this action against the defendants, husband and wife, for specific performance and damages because of their failure to carry out an alleged contract to sell realty owned by them in Norwalk. The complaint alleged that the defendants owned the land, which was located in the Silvermine district of Norwalk; that the defendant William F. Manley, to whom we shall hereafter refer as Manley, was the husband and agent of the defendant Armenell F. Manley; that on March 29, 1943, he accepted by telegram the plaintiff's written offer of $8500 net for the premises; and that the defendants have refused to convey the property although the plaintiff has ever since been ready, able and willing to perform on his part. The allegations as to agency and the contract are denied by the answer. The court, concluding that no recovery could be had against the defendants because there was no agency, and that none could be had against Manley alone because there was no allegation or proof of the breach of any contract made by him for the sale of his undivided interest in the property, rendered judgment for the defendants from which the plaintiff has appealed.

The finding, which is not attacked, establishes these facts: The defendants were the owners of the realty in question and owned no other property at Silvermine in Norwalk. March 22, 1943, the plaintiff's agent signed and sent a letter to Manley in which he stated, referring to the plaintiff, that the person interested in purchasing the property at Silvermine offered $8500 net for it. On March 29, 1943, Manley in response sent a telegram to the plaintiff's agent accepting the terms outlined in this letter. The plaintiff did not know until after that date that Mrs. Manley owned an undivided half-interest in the property. Both defendants refused to convey the premises to the plaintiff for $8500 net. The reasonable value of the property was $10,500. A further fact found is that Mrs. Manley never gave her husband any authorization or instructions to act as her agent in selling the property or to negotiate or contract for the sale of it. The plaintiff has assigned error in the court's conclusion reiterating this and also in its conclusion that Mrs. Manley never caused or authorized her husband to hold himself out as her agent for the purposes above stated. The burden rested on the plaintiff to prove that Manley in agreeing upon the sale of the property, in so far as his wife's undivided interest therein was concerned, was acting as her agent within the scope of his authority. In the absence of subordinate facts in the finding indicating that the court's conclusion that the husband had neither actual nor apparent authority was unwarranted, it cannot be disturbed. This precludes recovery by the plaintiff against Mrs. Manley.

The next question is whether, as contended by the plaintiff, there was error in the court's further conclusion that for lack of allegation and proof of breach of any contract made by Manley for the sale of his individual undivided interest the plaintiff can have no judgment against him. The facts found show that Manley contracted to convey full title. That his ownership was restricted to an undivided one-half interest instead of including the entire title in no way limited his capacity to contract. For the breach of such a contract he could be held liable. So here, he could be liable for breach of his contract to convey these premises whether or not Mrs. Manley was owner of the other undivided half-interest. The finding is adequate to establish such liability. The facts above recited are sufficient to furnish a basis for relief to the plaintiff by specific performance or damages.

The applicable general rule is that ‘the vendee, if he so elects, is not only entitled to have the contract specifically performed to the extent of the vendor's ability to comply therewith by requiring him to give the best title he can or convey what he has, but he may compel the vendor to convey his defective title or deficient estate, and at the same time have a just abatement out of the purchase price for the deficiency of title, quantity, or quality of the estate to compensate for the vendor's failure to perform the contract in full.’ 49 Am.Jur. 123; Moore v. Gariglietti, 228 Ill. 143, 147, 81 N.E. 826, 10 Ann.Cas. 560; Melin v. Woolley, 103 Minn. 498, 500, 115 N.W. 654, 946, 22 L.R.A.,N.S., 945; Bartee v. Matthews, 212 Ala. 667, 103 So. 874; Andrien v. Heffernan, 299 Pa. 284, 288, 149 A. 184; Feldman v. Lisansky, 239 N.Y. 81, 84, 145 N.E. 746; Brookings v. Cooper, 256 Mass. 121, 124, 152 N.E. 243, 46 A.L.R. 745; Keator v. Brown, 57 N.J.Eq. 600, 42 A. 278. The reason of this rule is that it is unjust to allow the vendor to take advantage of his own wrong, default or misdescription. 2 Story, Equity Jurisprudence, 14th Ed., § 1067. It is based upon equitable principles, and endeavors to preserve the rights of both parties. Pomeroy, Specific Performance, 3d Ed., § 434; and see note, 46 A.L.R. 748. However, the court may confine the vendee's relief to damages, where under the circumstances the granting of specific performance would be inequitable, particularly where the rights of third parties are...