Lunde v. Minch

Maltbie, J. This is an action brought to recover damages for a claimed breach of contract by the defendants in failing to perform an agreement to convey a certain lot of land. The contract was made April 28th, 1925. It stated the agreement of the defendants “to convey by warranty deed . . . said premises free and clear from all incumbrances except building lines if established, [and] taxes for the current year”; it acknowledged receipt of $100 paid upon the purchase price, and provided for the payment of the balance, $1,400, in cash; and it stated: “It is hereby agreed that *659 the transaction shall be completed and the purchase price paid on or before the first day of June.” The obligation of the defendants to perform their promise to convey the premises free and clear of all incumbrances and the promise of the plaintiffs to pay the purchase price, were “mutual and dependent covenants demanding of each of the parties readiness and willingness to perform, and requiring, as a condition of judicial enforcement or redress for breach at the complaint of either, such readiness and willingness on his part, or a showing of sufficient excuse for their absence.” Stierle v. Rayner, 92 Conn. 180, 183, 102 Atl. 581. The trial court has found that while the plaintiffs were ready, able and willing to perform their obligations, they never did perform them or offer to do so, nor did they ever make demand upon the defendants to fulfil their obligations under the agreement; and this finding we take to include a failure of the plaintiffs to give that notice to the defendants of their readiness and ability to perform which is tantamount to a tender of performance. Smith v. Lewis, 24 Conn. 624. That being so, it was incumbent upon the plaintiffs to show that they were excused from taking those steps which ordinarily would be necessary to put the defendants in default. Phillips v. Sturm, 91 Conn. 331, 335, 99 Atl. 689. The excuse upon which the plaintiffs rely is the inability of the defendants to convey the premises free and clear of all incumbrances by reason of the existence of certain restrictions upon the use of the property. If, being aware of the restrictions upon the premises which would prevent their performance of their agreement, the defendants failed to remove them, and so continued unable to perform, any offer to perform by the plaintiffs would have been as unnecessary as it would have been unavailing, and so they *660 would have been excused from making it. Soldate v. McNamara, 94 Conn. 589, 591, 109 Atl. 724. While we have usually been called upon to apply this principle in cases where there has been a rescission of the contract and the claim is for the recovery of money paid, yet it controls also in actions brought for breach of the agreement. Smith v. Lewis, 24 Conn. 624; Bugajski v. Siwka, 200 Mich. 415, 166 N. W. 863; McLeod v. Hendry, 126 Ga. 167, 171, 54 S. E. 949; 39 Cyc. 1544, 2089. To the general principle there are no doubt exceptions, as where a defect unknown to both parties crops up at or after the time set for performance and equitable considerations dictate that the vendor be given a reasonable opportunity to remove it before a default can be claimed, or where the vendor is in a position forthwith to remove an existing defect upon the vendee making offer of performance. Marsh v. Holley, 42 Conn. 453. The case before us presents neither of these situations; the defect of which the plaintiffs complain was fully known to the parties before the time for the performance of the contract had expired and yet the defendants did nothing to remove it even down to the time of trial some months later; and the test of a present ability to perform is not met where the power to remove a defect is conditioned upon the consent of a third party not then secured. Greene v. Barrett, Nephews & Co., 238 N. Y. 207, 211, 144 N. E. 503. The lot in question was a portion of a tract which one Miles had laid out for development as a summer residential district. In the map filed in the town clerk’s office he did not mention any restrictions to be imposed on the various lots comprising the tract, but in the deeds of most of them he inserted restrictions as to their use, including one against using them for other than dwelling-house purposes. One Haskins *661 bought a number of the lots, and later resold them, the deeds stating the same restrictions. A few of the lots in the tract were sold by Miles and Haskins without restrictions, the intent being to make it possible to erect upon them stores to accommodate those who built houses upon the other lots.. The lot of the defendants was bought from Haskins and was one of those the use of which was restricted. The purpose of the plaintiffs in buying it was to erect upon it a building to be used for store purposes. At the time of making the agreement the matter of the restrictions was discussed and one of the defendants, Mrs. Minch, stated that Haskins had told her that the imposition of the restrictions upon the lot was a mistake and had offered to remove them; and she asserted her belief that she could obtain a release from him. Accordingly she did obtain from Haskins and Miles a quitclaim deed, particularly purporting to release the restrictions forbidding the use of the lot for other than dwelling-house purposes. After this deed had been obtained the plaintiffs, with the consent of the defendants, entered upon the lot and began the erection of a building to be used for stores. When it was partly done they, with the defendants, were served with a temporary injunction issued by the Superior Court at the suit of an adjoining lot owner, forbidding them to proceed with the building. The ground of the suit was that the restrictions upon the lot were imposed as a portion of a uniform plan of development of the Miles tract, and consequently had given rise to rights in the owners of other lots in the tract to insist upon their observance. The defendants in the action in which the temporary injunction was issued made a motion for its dissolution, but the motion was denied and nothing further was done in that action up to the trial of this one. *662 Whatever the effect of the quitclaim deed from Miles and Haskins to the defendants as regards the former’s rights, it could not affect any rights the other lot owners in the tract might have to insist upon the observance of the restrictions. Baker v. Lunde, 96 Conn. 530, 538, 114 Atl. 673; Ivarson v. Mulvey, 179 Mass. 141, 60 N. E. 477; Bowen v. Smith, 76 N. J. Eq. 456, 462, 74 Atl. 675; Harvey v. Ruben, 219 Mich. 307, 189 N. W. 17. The fact that the right of other lot owners to insist upon the restrictions was in issue in the action in the Superior Court would be no reason why, if it were also in issue in this action, the court should not have here adjudicated it. But the existence of such a right could not be fully adjudicated here, for the all-sufficient reason that the persons who might assert it are not parties to this action. Fleming v. Burnham, 100 N. Y. 1, 10, 2 N. E. 905. The issue here is not so much did the right exist, but rather was there sufficient substance in the claim made on behalf of other lot owners in the tract so that the plaintiffs would be justified in refusing to take title to the premises as free and clear of incumbrances. The situation disclosed in the finding is such that the owners of the other lots might very well have had a right to insist upon the restrictions. Baker v. Lunde, 96 Conn. 530, 536, 114 Atl. 673; Armstrong v. Leverone, ante, 464, 136 Atl. 71. One of them was in fact seeking to enforce that right in a pending action. The plaintiffs, had they taken title, would in very truth have been “buying a law suit,” and that they were not obligated to do. Janulewycz v. Quagliano, 88 Conn. 60, 63, 89 Atl. 897; Brokaw v. Duffy, 165 N. Y. 391, 399, 59 N. E. 196. It follows that upon the facts found no other conclusion is possible than that the defendants, at all times up to the time of this action, were unable to convey to the plaintiffs a title which would fulfil their *663 agreement; that the plaintiffs were excused from offering to perform the obligations assumed by them in that agreement, and that they are entitled to judgment. There is no necessity for the court to retry the issue of liability of the defendants, but only to determine the amount of damages to which the plaintiffs are entitled. Smith v. Whittlesey, 79 Conn. 189, 193, 63 Atl. 1085. There is error, and a new trial is ordered limited to the assessment of damages. In this opinion the other judges concurred.