Zullo v. Smith
| Decision Date | 12 February 1980 |
| Citation | 427 A.2d 409,179 Conn. 596 |
| Court | Connecticut Supreme Court |
| Parties | Ralph ZULLO v. DeForest W. SMITH. |
Bruce L. Levin, Bridgeport, with whom, on the brief, was Keith D. Dunnigan, Bridgeport, for appellant-appellee (defendant).
James G. Verrillo, Bridgeport, for appellee-appellant (plaintiff).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.
The plaintiff Ralph Zullo brought this action for breach of contract claiming damages for lost profits due to the failure of the defendant DeForest W. Smith to purchase his property for $90,000. Zullo later sold it for $67,500 after he had received a letter from the defendant stating that he was terminating the contract and requesting the return of his deposit of $9000. The plaintiff alleged that the termination was improper because the contract was conditional only upon the obtaining of a building permit from the city of Milford and that the defendant had failed diligently to pursue the obtaining of the permit. The defendant Smith filed a counterclaim seeking a return of his $9000 deposit.
The plaintiff's action was based upon an agreement to sell and convey to the defendant a parcel of real property located in Milford for the purchase price of $90,000. The contract provided in pertinent part: The defendant received a final, executed contract from the plaintiff on January 16, 1974. Thereafter, the defendant advised the plaintiff that he desired to terminate the contract; in doing so he sent a letter which the plaintiff received on January 28, 1974, stating in part:
The trial court found that the "defendant terminated the contract because he lost his prime tenant and not because of the inability to secure a permit" and concluded that "(t)he letter of January 28, 1974, was insufficient to terminate the contract because it does not cite as a reason defendant's inability to secure a permit." Thus, the trial court concluded that the defendant was not entitled to the return of his $9000 deposit together with interest as the defendant claimed. The trial court also concluded that the defendant breached the contract and that the plaintiff was entitled to damages. It further determined, however, that the plaintiff suffered no actual loss by virtue of the defendant's breach because there was no difference between the contract price and the value of the land to be conveyed.
The defendant has appealed claiming that the trial court erred in concluding that the defendant's letter of January 28, 1974, was insufficient to terminate the contract because it did not cite as a reason the defendant's inability to secure a building permit. The plaintiff has filed a cross appeal claiming that the trial court erred in deciding that the plaintiff suffered no actual loss after the court had determined that the defendant breached the contract.
In relation to the defendant's claim, it is significant that the court concluded that the "defendant exercised due diligence in attempting to obtain a building permit for the plaintiff's property." The trial court found a series of facts which recite the numerous steps the defendant took to obtain a building permit for the property. Neither these facts nor the trial court's conclusion based on them has been attacked by the plaintiff in this appeal; it is thus uncontroverted that the defendant exercised due diligence in attempting to obtain the permit.
The finding indicates that prior to and simultaneous with the execution of the contract, the defendant submitted an application for site-plan approval as required by local laws. He continued to attend and participate in meetings and discussions with various commissions since these agencies, which included the sewer commission, were required to grant approval before a building permit could be issued. After the defendant had transmitted the application and plans to the Milford planning and zoning authority, on January 16, 1974, it was found that the authority in Milford responsible for the site-plan approval was not meeting until January 29, 1974. The defendant asked the mayor of Milford to expedite the site-plan approval; satisfied the requirements of the engineering office; had the police study the traffic impact of his proposal; and sent a letter to the planning and zoning authority.
The defendant, however, ran into difficulty in attempting to have the requisite sewer application approved before January 31, 1974. After the execution of the contract on January 16, 1974, the defendant discovered that the next meeting of the sewer commission was not until February. The defendant had several discussions with the sewer commission in January of 1974 and requested a special meeting of the commission which was denied by its chairman. The sewer application was never approved or disapproved. Even if the defendant had obtained prior approval of his site plan by the city engineer, the chairman of the sewer commission was unwilling to conduct a telephone canvass of the commission's members to obtain approval for the defendant's requested sewer connection. Simply put, the defendant's efforts to obtain the building permit by January 31, 1974, were stymied by the impossibility of receiving sewer approval by that date.
In light of the aforementioned facts and the trial court's uncontroverted conclusion that the defendant exercised due diligence in attempting to obtain the building permit, the defendant contends he had the right to terminate the contract. We agree. In the present case, the contract provides in pertinent part that "(i)f Buyer notifies Seller of Buyer's inability to obtain said building permit on or before January 31, 1974, then this contract shall be declared null and void and all deposit monies shall be returned to Buyer immediately." The clear meaning of the quoted sentence from the contract is that if the defendant gave the plaintiff sufficient notice by January 31, 1974, of his inability to obtain a building permit by January 31, 1974, the defendant was entitled to terminate the contract and to the return of his $9000 deposit. Thus, the contract expressly gave the defendant the privilege and the power to terminate by giving the requisite notice. See Stern & Co. v. International Harvester Co., 148 Conn. 527, 532, 172 A.2d 614; Acme Markets, Inc. v. Dawson Enterprises, Inc., 253 Md. 76, 251 A.2d 839; Central Ohio Co-Operative Milk Producers, Inc. v. Rowland, 29 Ohio App.2d 236, 281 N.E.2d 42; 1A and 6 Corbin, Contracts §§ 265, 1266; annot., 166 A.L.R. 391.
The plaintiff contends that the defendant was precluded from terminating the contract because the reason the defendant sought to terminate was due to the loss of his prime tenant and that reason was not provided for in the contract. The plaintiff thus seeks to read the contract as providing that the defendant could terminate only if his sole reason for termination was the inability to obtain a building permit by January 31, 1974.
The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. Downs v. National Casualty Co., 146 Conn. 490, 494, 152 A.2d 316. The circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used. Connecticut Co. v. Division 425, 147 Conn. 608, 616-17, 164 A.2d 413; see 3 Corbin, Contracts § 542; 4...
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