Phillipe v. Thomas

489 A.2d 1056, 3 Conn. App. 471, 1985 Conn. App. LEXIS 886
Connecticut Appellate Court·Decided April 2, 1985·No. 2097·Published·Cited by 47 cases

Opinion

Borden, J.

This is an appeal1 from the judgment of the trial court for the plaintiff, entitling her to the return of a deposit paid to the defendant under an agreement to purchase real estate. We find error.

On April 13,1979, the parties entered into the agreement for the sale of certain real estate from the defendant to the plaintiff for $105,000. The agreement [472] contained a mortgage contingency clause conditioning the plaintiffs obligation on her obtaining a commitment for a thirty-year, $84,000 first mortgage at prevailing interest rates, and on such other terms and conditions imposed at the time by any lending institution where the plaintiff made application for the loan. The plaintiff was required by this clause to make immediate application for the loan and to pursue the application with diligence. She had until April 30, 1979, to obtain such a commitment or to inform the defendant that the commitment was not received.2

The plaintiff applied for the mortgage at a bank, but was turned down because the amount requested was excessive in view of the bank’s appraisal of the property of $100,000. The bank, however, approved an $80,000 mortgage.

The plaintiff requested either an extension of time within which to obtain a mortgage commitment which met the terms of the agreement or a reduction in the [473] purchase price to reflect the bank’s appraisal. The defendant refused the plaintiff’s requests. On April 30, 1979, the plaintiff timely requested that her deposit be returned. The defendant refused. The court found that the defendant’s refusal was based on his realty agent’s phone call to the bank requesting that the bank review the plaintiff’s application and give her the $84,000 mortgage by changing the appraisal or by giving her a 90 percent MGIC3 mortgage using the bank’s appraisal.

The court concluded that the defendant was obligated to return the plaintiff’s deposit because, although the plaintiff made a good faith effort to meet the mortgage condition, the condition was not met. On appeal, the defendant claims, inter alia, that the court applied the wrong legal standard to the plaintiff’s efforts to meet the condition. We agree.

The good faith standard was the improper standard with which to test the plaintiff’s efforts to obtain a mortgage commitment for two reasons. First, although some courts have interpreted mortgage contingency clauses such as this one to imply that the purchaser will seek to obtain a mortgage commitment in good faith; e.g., Fry v. George Elkins Co., 162 Cal. App. 2d 256, 327 P.2d 905 (1958); Liuzza v. Panzer, 333 So. 2d 689 (La. App. 1976); Bushmiller v. Schiller, 35 Md. App. 1, 368 A.2d 1044 (1977); see generally 78 A.L.R.3d 880; courts in Connecticut imply a promise that the purchaser will exert reasonable efforts to obtain a mortgage commitment. Luttinger v. Rosen, 164 Conn. 45, 47, 316 A.2d 757 (1972) (due diligence used in seeking financing); Lach v. Cahill, 138 Conn. 418, 422, 85 A.2d 481 (1951); Webb v. Moeller, 87 Conn. 138, 141, 87 A. 277 (1913) (reasonable efforts to fulfill condition precedent implied in contract to purchase stock); see also [474] Osten v. Shah, 104 Ill. App. 3d 784, 433 N.E.2d 294 (1982); Stabile v. McCarthy, 336 Mass. 399, 145 N.E.2d 821 (1957); see generally 78 A.L.R.3d 880.

Second, the language of this agreement indicates that such a standard was intended. Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981). The clause required the plaintiff to make immediate application for the mortgage on the terms stated in the agreement and to pursue the application “with diligence.”4 The words of the contract must be given their common usage and meaning where possible. Leonard Concrete Pife Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598-99, 424 A.2d 277 (1979). “Diligence,” defined by Webster’s Third New International Dictionary as “persevering application: devoted and painstaking application to accomplish an undertaking,” and as “the attention and care required of a person . . . [as] opposed to negligence,” (emphasis in original) implies at the least that reasonable diligence is required. Thus, this contract required that reasonable diligence be used to obtain the mortgage commitment, and that standard is substantially equivalent to the “reasonable efforts” standard implied by our cases.

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Phillipe v. Thomas, 489 A.2d 1056, 3 Conn. App. 471, 1985 Conn. App. LEXIS 886 (Colo. Ct. App. 1985).

489 A.2d 1056 (Phillipe v. Thomas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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