39 A.2d 885 | Conn. | 1944
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 *288 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 *289 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,
The allegations of the complaint are sufficient to support the plaintiff's cause of action under the rule above quoted. Aside from the allegation as to agency which the court's finding has effectively eliminated from consideration, they are that the defendants owned the property, the plaintiff made an offer to Manley to buy it for $8500, Manley accepted this offer, and the defendants refused to convey. By two of his prayers for relief the plaintiff seeks a decree that the defendants specifically perform the agreement and $3000 damages. These are sufficient to warrant either a decree for specific performance or for damages against Manley alone. Makusevich v. Gotta,
While the trial court did not expressly decide that the agreement was unenforceable because of the Statute of Frauds, the defendants' claims at the trial and the briefs of the parties indicate that the question was in the case, and, as it will no doubt be of material assistance upon a retrial to determine it, we have decided to do so. The only claim under the statute made in the defendants' brief is that the statement of the price to be paid, "$8500 net," is too indefinite. "The note or memorandum of sale, required by the statute, must state the contract with such certainty, that its essentials can be known from the memorandum itself, without the aid of parol proof, or by a reference contained therein to some other writing or thing certain; and these essentials must at least consist *291
of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement." Nicholas v. Johnson,
There is error, the judgment in favor of the defendant