147 Conn. 34 | Conn. | 1959
The plaintiff contracted to purchase a business property in the center of Bridgeport from the defendants. It paid a deposit which the defendants have retained as liquidated damages for claimed breach of the contract. The plaintiff sued to recover the amount of the deposit and of the expenditures it had made in ascertaining the market
On August 24, 1953, the parties entered into a written agreement wherein the plaintiff agreed to purchase and the defendants agreed to sell certain real estate consisting of land and a building in downtown Bridgeport. The contract provided for the completion of the sale on November 16, 1953. The plaintiff paid a deposit of $5000 which was to be returned, together with reasonable costs of title search, if the defendants could not convey good title. The deposit was to be forfeited by the plaintiff and retained by the defendants as liquidated damages if the plaintiff failed to purchase the property and there was no uncorrected defect in the defendants’ title. The contract further provided that notice of any defect should be given to the defendants not later than fifteen days prior to the date of the closing and that the defendants would have ninety days after receipt of notice to remedy the defect. The other provisions of the contract are not material to our discussion of the case.
Early in September, 1953, the plaintiff notified the defendants that a preliminary search of the title disclosed that the named defendant, Mrs. Covell, had been left a life use of the property by her father, with remainder to go to the heirs of her body, and that the possibility that she might yet have children born to her who would acquire an interest in the property rendered the title unmarketable. The plaintiff, because of this possibility, on
Thereafter, further discussions were had by the parties. The plaintiff caused the search of the title to be completed. On December 1, 1953, it notified the defendants that the title was not marketable because the chimney on the property extended four inches into the north wall of the adjoining bank building, as disclosed by a document recorded in the land records in 1884 wherein a predecessor in title of the defendants had expressly acknowledged for himself and his successors in title that the encroachment of the chimney was by permission of the bank, that no easement therein was acquired and that the encroachment would be removed whenever the bank or its successors in title so required. About the same time, the plaintiff requested permission for its representative to examine the encoachment, but the defendants refused the request. Inconclusive discussions continued between the parties until February 17,1954, when the defendants wrote to the plaintiff that they had obtained an estimate from a contractor that the cost of relocating the chimney was $2500 and that they were ready, willing and able to have the work done. In the alternative, they stated that if the plaintiff preferred to accept the premises
The plaintiff is not entitled to any correction of the finding. The September, 1953, opinion of the defendants’ attorney discounting the defect in the title due to the possibility of Mrs. Covell’s yet having children was of no greater materiality than the evidence of her age, to which the plaintiff had objected. Such defect in title as may have existed because of her age and the possibility of further procreation was removed when the defendants, within the time provided in the agreement, obtained a judgment of the Superior Court authorizing the sale of
The court instructed the jury that the determination whether the plaintiff had sustained its burden of proving “that the defendants would not sufficiently and reasonably remove the encumbrance regarding the chimney and thus left in abeyance the marketability of title” should be governed by the acceptance of the testimony, as to the cost of relocating the chimney, of either the architect who testified for the plaintiff or the contractor who testified for the defendants. The evidence of these two witnesses, if material to the determination of this issue, was but an element for the jury’s consideration in connection with all the other evidence in the case. The jury should not have been so charged. Coy v. Milford, 126 Conn. 484, 489, 12 A.2d 641; Brodie v. Connecticut Co., 87 Conn. 363, 367, 87 A. 798.
The ultimate issue for the jury to determine was
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.