Trowbridge v. Jefferson Auto Co.

Roraback, J. The pleadings and finding show that the defendant has not only broken its contract, but has refused to go on further with it unless the plaintiff would consent to a very material reduction of the contract price that he was to receive for his old car. It is a familiar principle of law that a valid contract cannot be abrogated or modified unless both parties assent, and if one of the parties, when the other is not in default, manifests in unequivocal language his intention not to perform the contract unless it is modified, he breaches the contract, and is liable therefor. As we have seen, the complaint alleges the execution and delivery of the contract. This contract contains a description of both cars and the prices agreed upon for them. It also contains a statement that the initial payment of $400, agreed upon as the price of the plaintiff’s car, had been received by the defendant at the time of the execution of the contract. This the defendant, by reason of its answer, concedes to be true. Thus it appears by the admitted facts that it was incumbent upon the defendant to notify the plaintiff when its car was ready for delivery. By the terms of the contract the plaintiff was then to be allowed two days within which to make payment of the balance due as the exchange price of the cars. But it appears that no such notice was given, and that the defendant absolutely refused to perform its contract unless the plaintiff would agree to take $250 for his old car. If read in the light of what has gone before, this was such a repudiation of its agreement by the defendant that it not only excused the plaintiff from making a tender, but also authorized the plaintiff to rescind *574 the contract upon his part and bring an action for his damages. But it is suggested by the defendant that it does not appear that the plaintiff was ready and willing to perform his part. It does appear, however, that the plaintiff, when this notification was given to him by the defendant, had delivered his car and that the defendant had examined and accepted it for the sum of $400 in part payment for the new car. The plaintiff was personally bound by his contract to pay the balance then unpaid, and the proper way for the defendant to have tested the willingness of the plaintiff to pay was to have tendered performance upon its part in conformity with the terms of the contract. This it failed to do. In this connection it may be noticed that upon the trial the defendant claimed that on January 12th, 1916, when the Interstate car was left at its place at Waterbury, it was not in the same condition as when the allowance of $400 in exchange was fixed, and as the plaintiff admitted some damage, for which he agreed to pay, it was the duty of the plaintiff to get together with the defendant and adjust the amount of damage if possible. The court properly overruled this claim. It is not found, neither does it appear, that any such change in the plaintiff’s car took place; and further than this, it is not shown that the defendant ever made any such claim to the plaintiff before it absolutely refused to perform its contract unless the plaintiff would consent to a very material change in the price agreed upon for his car. Upon this point the defendant has moved to correct the finding, so that it would sustain the defendant’s claim just noticed as to the change in the condition of the plaintiff’s car. The record discloses that the question as to the change of the condition of the plaintiff’s car was raised by the defendant in its counterclaim. The averments of the defendant’s counterclaim upon *575 this branch of the case were denied by the plaintiff, and under the issue thus presented the defendant assumed the burden of proof to establish this proposition. This it failed to do. An examination of the evidence which the defendant has caused to be certified by the court below upon this subject, when read in connection with the finding, falls far short of establishing the defendant’s contention in this respect. It necessarily follows that this motion to correct should be denied. Upon his cross-examination the plaintiff was asked whether his son-in-law, a man by the name of Lindsley, had an arrangement with the Bradford Auto Company for a special agency for Paige cars of the same make as the one now in question. On objection this question was excluded. It does not appear that this question was answered, although the defendant claimed that the purpose of asking it was to show that the plaintiff did not want to carry out his contract, and that his motive in taking this position was that after making the agreement with the defendant he made another arrangement for a car with his son-in-law so that he could save the agent’s commission in the purchase price of a car. The controlling issue in the trial of the case in the court below was whether the defendant had broken its contract by refusing to deliver its car unless the plaintiff would consent to accept a reduced price for his automobile. This question depended upon the written contract between the parties and the action of the defendant shown in its letter, in which it absolutely refused to perform on its part unless the plaintiff would consent to a very material modification of the terms of the written contract. This, as we have already stated, was for unjustifiable reasons. If the plaintiff had a son-in-law engaged in the sale of automobiles, and it appeared that Trowbridge could have saved the agent’s commission by making a purchase of this relative, this *576 fact would not, under the circumstances of the present case, have justified the defendant in its refusal to perform upon its part. This ruling is therefore insufficient to warrant an interference with the judgment. There is no error. In this opinion the other judges concurred.