Opinion
In an action for damages for breach of a contract to sell real estate where the plaintiff himself broke the contract he was not entitled, in an action based upon it, to recover the part payments he had made.
Argued May 8th, 1931
Decided June 22d 1931.
ACTION to recover damages for the breach of a contract to sell real estate, brought to the Superior Court in Middlesex County and tried to the court, Inglis, J.; judgment for the plaintiff against the defendant Johnson and appeal by that defendant. Error; judgment for defendant directed.
Donald Gaffney, with whom was Leo v. Gaffney, for the appellant (defendant).
Algert Politis, with whom, on the brief, was Harry Ginsberg, for the appellee (plaintiff).
The plaintiff brought this action upon a special contract for the conveyance to him by the defendant of certain real estate. He alleged in his complaint the performance on his part of all his obligations under the contract which had become due and a readiness and willingness to carry out the rest of the agreement, the payment of certain sums under it, and a refusal of the defendant to perform; and he claimed damages. The trial court found that the plaintiff had broken the contract by failing to make the monthly payments called for in it, while the defendant had at all times been ready, able and willing to carry out its terms but nevertheless it gave judgment for the plaintiff to recover the amount he had paid to the defendant. Under the finding of the court as to the defendant's readiness, willingness and ability to perform, it is difficult to see any basis upon which the plaintiff could recover. 40 Yale Law Journal, 1016. But if there was such a right, it would have to be asserted in an action properly addressed to such a recovery. We cannot read the complaint before us otherwise than as one for damages for the defendant's breach of the contract and the plaintiff having himself broken it certainly was not entitled to recover in an action based upon it. Pitcher v. Christ Church (Episcopal) Corporation, 83 Conn. 308, 310, 76 A. 272; Pratt v. Dunlap, 85 Conn. 180, 82 A. 195; Costantino v. Lodjiodice, 93 Conn. 203, 209, 105 A. 465.