Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc.

611 A.2d 435, 28 Conn. App. 460, 1992 Conn. App. LEXIS 301
CourtConnecticut Appellate Court
DecidedAugust 4, 1992
Docket10649
StatusPublished
Cited by29 cases

This text of 611 A.2d 435 (Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 611 A.2d 435, 28 Conn. App. 460, 1992 Conn. App. LEXIS 301 (Colo. Ct. App. 1992).

Opinion

Freedman, J.

In this interpleader action,1 the defendant, Vestpro Corporation, appeals from the judg[461]*461ment of the trial court awarding the other defendant, Tuck-it-away, Bridgeport, Inc., $100,000 as liquidated damages for Vestpro’s default under the terms of a contract for the sale of real property.2 Vestpro claims that the trial court improperly found that Tuck-it-away was entitled to the $100,000 as liquidated damages for Vest-pro’s default in performance of the contract of sale. We affirm the judgment of the trial court.

The parties stipulated to the following facts. On or about April 13,1988, Tuck-it-away, as seller, and Vest-pro, as buyer, signed a contract for the sale of real property located in Bridgeport. Pursuant to the contract, Vestpro deposited $100,000 in escrow with Tuck-it-away’s attorneys, Pullman, Comley, Bradley and Reeves.3 This is the money presently in dispute between [462]*462the parties. By correspondence dated October 14,1988, Tuck-it-away and Vestpro agreed in writing to extend the closing date until December 10, 1988.

On December 10,1988, a Saturday, no closing took place. On or about December 14, 1988, Tuck-it-away received from Vestpro a letter purporting to cancel the contract on the basis of three alleged title defects: (1) a lis pendens dated August 9, 1983, (2) a certificate of attachment dated June 27, 1988, and (3) a three foot nonconformity in one of the lengths in the legal description of the property as referenced in the contract.

Before December 10,1988, Tuck-it-away’s attorneys had in their possession a release of the August 9,1983 lis pendens and a release of the June 27,1988 attachment. At the time of execution of the contract, neither Tuck-it-away nor Vestpro was aware that the legal description contained an incorrect length. On or about September 16, 1988, attorneys for both Tuck-it-away and Vestpro received a survey from Preferred Land Title Services, Inc., showing a correct legal description of the property. At no time prior to the December 12, 1988 letter did Vestpro ever advise Tuck-it-away or complain to Tuck-it-away about the error in the legal description of the property contained in the contract.

In addition to these stipulated facts, other facts necessary to a resolution of this matter can be summarized as follows. The total purchase price due under the contract was $1,900,000. The contract provided that the closing date would be 120 days from the date of execution of the contract, but that Vestpro could obtain four extensions of time upon payment to Tuck-it-away of $15,000 for each extension. Because Vestpro exercised all four rights of adjournment, the actual closing date was December 10, 1988. The contract provided that time was of the essence.

[463]*463As December 10 approached, Vestpro was short of the total funds necessary to complete the deal. On December 7, 1988, Alan Goldman, one of Vestpro’s principals, met with Gerald Sprayragen, Tuck-it-away’s president, to discuss the situation. At that meeting, Goldman indicated that Vestpro did not yet have the total funds necessary, but that it was close to attaining its goal, and optimistic that it would reach its goal, but that a further extension of time was needed. Although the express contractual language did not permit another extension, Sprayragen indicated that he would permit another extension if Vestpro would pay a fee for the extension. Vestpro refused to pay for a further extension, and as a result no agreement for an extension came from this meeting. Sprayragen also spoke with Stephen Hochman, a partner in Vestpro whose job was to solicit investors. He too indicated to Sprayragen that Vestpro was unable to close on December 10 and needed an extension of the closing date.

During that week, Michael Proctor, an attorney who represented Tuck-it-away in this deal, spoke with Gary Kleinman, an attorney who represented Vestpro in its negotiations and dealings with Tuck-it-away. Kleinman told Proctor that Vestpro would not be able to close on December 10 and needed another two weeks to secure the remaining funds. It thus was clear to Tuck-it-away that Vestpro would not be able to close the deal on December 10, 1988.

On December 9, 1988, Vestpro representatives met with their prospective investors to discuss the situation. During the meeting, the group received a call from Kleinman, who told the group “You got lucky” because he had discovered a discrepancy in one of the courses in the property description.4 As a result of this informa[464]*464tion, Vestpro decided to send a letter to Tuck-it-away electing to cancel the contract under its provisions because of Tuck-it-away’s inability to convey title to the premises in accordance with the terms of the contract.5 The létter represented to Tuck-it-away that Vestpro elected to cancel the contract because of the three alleged defects in title previously discussed.6 The letter was not mailed to Tuck-it-away until the end of the day on December 12, 1988, and Tuck-it-away did not receive the letter until December 14, 1988.

Vestpro argues that because Tuck-it-away’s failure was not excused by an anticipatory breach by Vestpro, Vestpro was not in default and thus was entitled to a return of its deposit by reason of its letter of cancellation. Vestpro also argues that the trial court improperly found Vestpro in default for failing to appear for the closing on December 10,1988. Vestpro claims that this finding was improper because Tuck-it-away also failed to appear for the closing and tender title to the property.

We begin our analysis of Vestpro’s claim by noting that the trial court’s detailed memorandum of decision contains all of the necessary subordinate findings to support the conclusion that Vestpro had anticipatorily breached the contract as claimed at trial by Tuck-it-away, even though it did not, in fact, use the talismanic words “anticipatory breach.”

[465]*465Vestpro argues, however, that if the trial court did find that it anticipatorily breached the contract, that finding was clearly erroneous because it had no basis in the evidence presented. “An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Koski v. Eyles, 37 Conn. Sup. 861, 862, 440 A.2d 317 (1981). Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. Martin v. Kavanewsky, supra.” McKenna v. Woods, 21 Conn. App. 528, 532, 574 A.2d 836 (1990). “The manifestation of intent not to render the agreed upon performance may be either verbal or nonverbal; White v. Finch, 3 Conn. Cir. Ct. 138, 142, 209 A.2d 199 (1964); and is largely a factual determination in each instance.” Koski v. Eyles, supra, 863.

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Bluebook (online)
611 A.2d 435, 28 Conn. App. 460, 1992 Conn. App. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pullman-comley-bradley-reeves-v-tuck-it-away-bridgeport-inc-connappct-1992.