Opinion
By written contract the plaintiff agreed to exchange his real estate in Clinton for that of the defendant in Wallingford, the latter to be subject to mortgages aggregating $55,000 which were "to be arranged as well as possible by the said Butler." Thereafter in performance of the contract the plaintiff conveyed the Clinton property to the defendant, and the defendant tendered to the plaintiff's agent a deed of the Wallingford property which, however, recited that the incumbrances totaled $60,000. Although the agent refused to accept this deed, the defendant insisted upon leaving it with him; and, after the defendant had conveyed both properties to a third party, the plaintiff brought the present action to recover damages for breach of contract. Held:
1. That the clause in the contract concerning the arrangement of the mortgages was not ambiguous, as claimed by the defendant, since it could apply to nothing except their terms and conditions; and that even if it were regarded as of doubtful meaning, it did not appear that the defendant had been refused the privilege of offering evidence to explain it. 2. That the finding supported the trial court's conclusion that the contract, complete upon its face, was intended to embody the entire agreement. 3. That the deed tendered by the defendant, being subject to mortgages of $60,000, was not in conformity with the terms of the contract, which limited the incumbrances to $55,000. 4. That the failure of the plaintiff to return this deed to the defendant for two months after it was left with plaintiff's agent was of no significance since, under the circumstances, the agent became the enforced custodian of it for the defendant and not the voluntary custodian in behalf of the plaintiff. 5. That evidence to the effect that the equity in the Wallingford property at the date of the contract was $5,000 was sufficient to support the judgment in favor of the plaintiff for that amount.
Argued October 2d 1928
Decided November 7th, 1928.
ACTION to obtain a reconveyance of certain real estate, alleged to have been transferred by the plaintiff to the defendant under a contract of exchange which the defendant had refused to perform, and for damages, brought to the Superior Court in Hartford County and tried to the court, Dickenson, J.; judgment rendered for the plaintiff for $5,825, from which the defendant appealed. No error.
Vine R. Parmelee, with whom, on the brief, was John J. Wurdig, for the appellant (defendant).
Joseph F. Berry, with whom was William H. Leete, and, on the brief, Allan K. Smith and Cyril Coleman, for the appellee (plaintiff).
The plaintiff and defendant, Butler, entered into the agreement, Exhibit A, for the exchange of real estate by which the plaintiff agreed to execute and deliver a deed of his property in Clinton to defendant and in consideration thereof the defendant agreed to deliver to plaintiff on or before June 30th, 1925, a proper conveyance of his property in Wallingford subject to a certain right of way and to mortgages aggregating $55,000, which were "to be arranged as well as possible by the said Butler." On the date of this agreement the Wallingford property was incumbered by a first mortgage for $30,000 and by a second mortgage for $30,000 covering the property to be conveyed and other property of defendant in Wallingford. The meaning of the phrase "to be arranged as well as possible by the said Butler" is not stated among the facts in the finding but it appears in one of the conclusions of the trial court that it referred to the terms and conditions of the mortgages.
On July 1st, 1925, the defendant tendered to the plaintiff's agent a deed of the Wallingford property; the incumbrances specified therein were $60,000 and not the $55,000, as provided in the agreement. The plaintiff's agent refused to accept this deed, but defendant left it with him; later, on August 30th, 1925, the plaintiff mailed it to defendant with a request that he reconvey the Clinton property to plaintiff, which he refused to do. The defendant subsequently conveyed to one Sadd both the Clinton and Wallingford properties. The plaintiff received nothing from the defendant as a result of this agreement. The equity in the Wallingford property so agreed to be conveyed on June 30th, 1925, was worth $5,000.
The finding is not attacked. The provision in the agreement, "and mortgages aggregating fifty-five thousand dollars to be arranged as well as possible by the said Butler," is claimed by the appellant to be ambiguous. Mortgages arranged as well as possible could apply to nothing except the terms and the conditions of the mortgages, as the court concluded. There was no ambiguity in this phrase and no occasion for the admission of parol evidence with respect to the arrangement as to the mortgages. If the phrase had been ambiguous, so far as the finding discloses, the defendant offered no evidence tending to prove this arrangement and the court did not refuse to admit such evidence.
The court did not err in overruling defendant's claim that the agreement, Exhibit A, did not intend to embody in writing the entire agreement. Upon its face the agreement is complete and nothing in the finding tends to controvert the conclusion reached by the court that Exhibit A contained the entire agreement.
The defendant's claim that the deed tendered by him was a tender of performance in accordance with the agreement is not well taken. The deed did not conform to the requirements of the agreement of these parties inasmuch as the conveyance tendered specified that it was subject to mortgages aggregating $60,000 instead of the $55,000 as provided in Exhibit A. Tender was not refused because of the terms or conditions of the mortgages except as to their aggregate amount.
The defendant further claims that the retention of the deed by the plaintiff for approximately two months constitutes an acceptance of the deed. The failure to return the deed left with the plaintiff's agent by defendant is without significance. The agent refused to accept it when tendered and despite this refusal the defendant left the deed with the agent who as long as the deed remained in his possession was the enforced custodian of it for the defendant, not the voluntary custodian in behalf of the plaintiff. Since the plaintiff has kept his part of the agreement, Exhibit A, and conveyed the Clinton property to the defendant, who retains its title and has failed to convey the Wallingford property which was the consideration for the exchange, manifestly the plaintiff is entitled to damages for the loss caused him by the breach of Exhibit A by the defendant. The equity in the Wallingford property at the time of the making of Exhibit A was $5,000, which is sufficient evidence of the damage suffered by the plaintiff to justify the judgment.