Defendant argues that prepayment is valid consideration for an agreement to accept less than the full amount of the debt. Id. at 9, citing First Hartford Realty Corp. v. Ellis, 434 A.2d 314, 319 (Conn. 1980), and Melroy v. Kemmerer, 67 A. 699 (Pa. 1907). Defendant does not, however, explain how the other elements of accord and satisfaction are satisfied here.
This case came before the trial court on remand from the Supreme Court for a determination of the reasonable compensation to which the defendant, Sidney Ellis, was entitled for the performance of services for the plaintiff, Manchester Modes, Inc. (Modes). The facts essential to this appeal were set forth in First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 434 A.2d 314 (1980) (Ellis I), and need not be repeated here. This appeal, originally filed in the Supreme Court, was transferred to this court.
To modify an agreement, “there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense if they are to vary the contract in any way.” Lar–Rob Bus Corp. v. Town of Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976) (quotes and citations omitted); see also First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). “An existing contract may be modified or abrogated by a new contract arising by implication from the conduct of the parties.”
Additionally, it is ordinarily a question of fact whether the parties manifested an intent to rescind or cancel their agreement. Rowe, 189 Conn. at 373, 456 A.2d at 278; see First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 33, 434 A.2d 314, 318 (1980) (finding, in dicta, that the meaning to be given to an oral agreement to cancel a debt "depends upon the intention of the parties, which is a question of fact"). It could be argued that, here, however, no issue of fact is involved merely because plaintiff's attorney has proposed one way of interpreting the language in the 1990 Lease Modification without any factual evidence to support this construction. See, Mycak v. Honeywell, Inc., 953 F.2d 798, 802 (2d Cir. 1992) (stating that the mere assertion of an ambiguity does not preclude summary judgment and granting summary judgment in breach of contract case where record was "barren" of evidence showing the contract at issue was unclear).
While the general rule is that modification of a contract requires mutual assent by the parties as to its meaning and conditions, an existing contract may be modified or abrogated by a new contract arising by implication out of the conduct of the parties. Rowe v. Cormier, 189 Conn. 371, 456 A.2d 277, 278 (1983) (per curiam); First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 434 A.2d 314, 318-19 (1980); Yale Co-op Corp. v. Rogin, 133 Conn. 563, 53 A.2d 383, 385-87 (1947). Whether the acts of the parties show intention to modify or abandon the original agreement is a question of fact. Three S. Dev. Co. v. Santore, 193 Conn. 174, 474 A.2d 795, 798 (1984).
Defendant also sought to recover the stipulated loss value and default interest through its counterclaim and its proof of claim. First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 434 A.2d 314, 319-320 (1980) (demand for payment asserted in counterclaim constituted proper demand). Plaintiff's Exhibit 106.
Defendant also sought to recover the stipulated loss value and default interest through its counterclaim and its proof of claim. First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 434 A.2d 314, 319-320 (1980) (demand for payment asserted in counterclaim constituted proper demand). Plaintiff's Exhibit 106.
(Internal quotation marks omitted.) Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976); see First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). Modification of a contract may be inferred from the attendant circumstances and conduct of the parties.
The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention. Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402-403, 365 A.2d 1086 (1976). The intention of the parties is, in turn, a question of fact.
Such a determination of what the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached. Bead Chain Mfg. Co. v. Saxon Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). In the present case, although the court found that the plaintiff accepted the note as conditional payment, a finding that was concededly incorrect, there was no evidence that the plaintiff accepted the proceeds of the loan conditioned on the named defendant making the installment payments on the note.