Opinion
(9050)
The plaintiffs sought, inter alia, specific performance of a contract for the sale of certain real property. They claimed that the parties had included a certain right-of-way in their agreement. The trial court determined that the right-of-way was not included in the agreement, and rendered judgment ordering specific performance of the contract excluding the right-of-way, and ordering, in the alternative, the return of the plaintiffs' deposit. The defendant appealed to this court challenging only the order of specific performance, and the plaintiffs cross appealed. Because the trial court ordered the specific performance of a contract that the plaintiffs did not seek to enforce in their complaint, the judgment was reversed as to that award.
Argued January 16, 1991
Decision released March 12, 1991
Action for specific performance of an agreement for the sale of certain real property, brought to the Superior court in the judicial district of Danbury, where the defendant filed a counterclaim for breach of contract, and tried to the court, Stodolink, J.; judgment for the plaintiffs, from which the defendant appealed, and the plaintiffs cross appealed to this court. Reversed in part; judgment directed.
Lawrence M. Lapine, with whom, on the brief, was Christopher R. Bello, for the appellant-appellee (defendant).
Jack D. Garamella, with whom, on the brief, was Paula Flanagan, for the appellees-appellants (plaintiffs).
The defendant appeals and the plaintiffs cross appeal from a judgment rendered in favor of the plaintiffs, whereby the trial court awarded the plaintiffs specific performance of a purported contract to sell real estate, or, in the alternative, should the plaintiffs no longer want to purchase that real estate within 120 days of the final judgment, it ordered the defendant to return the plaintiffs' deposit in the amount of $29,000. In his appeal, the defendant challenges only the court's award of specific performance. We reverse the judgment in part.
The plaintiffs in this action are Ralph M. Steinberg and Suzanne Steinberg, husband and wife.
The dispositive issue in this case is whether the evidence established the existence of a contract that is susceptible to specific performance. We conclude that the court improperly found the existence of a contract.
The facts necessary to a resolution of this case may be briefly summarized as follows. The plaintiffs and the defendant's decedent began negotiations for the purchase of land that is owned by the defendant and abuts the plaintiffs' existing property. Although both parties agree that such a negotiation took place, they are at issue over what the resulting contract encompassed. The plaintiffs claim that the contract was for the purchase of 8.003 acres of land, together with a right-of-way, for a purchase price of $90,000. The defendant, on the other hand, claims that the contract was for the sale of 8.003 acres of land without any right-of-way. In their suit, the plaintiffs sought specific performance of the contract that they claimed existed to convey 8.003 acres together with a right-of-way.
The court concluded that a contract existed, but not the one for which the plaintiffs' sought specific performance. The judgment effectively orders the specific performance of a contract that the plaintiffs claim does not exist.
The confusion as to the terms of the contract is borne out by the fact that the judgment of specific performance in favor of the plaintiffs orders specific performance of a contract that the plaintiffs never sought to enforce in their complaint.
In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties. Cavallo v. Lewis, 1 Conn. App. 519, 520, 473 A.2d 338 (1984). The mutual understanding must manifest itself by a mutual assent between the parties. Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981). Further, the contract must be definite and certain as to its terms and requirements. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429-30, 378 A.2d 538 (1977).
Here, the trial court ordered specific performance of a contract that was not the contract claimed by the plaintiffs to be the one that existed between the parties. Thus, the relief granted was not the relief sought. It is not within the province of the court to create new and different agreements. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 282, 492 A.2d 180 (1985); Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 55, 453 A.2d 771 (1983).
Our review of the record, transcripts and briefs leads us to conclude as a matter of law, that the court improperly held that a valid contract for the sale of land existed between the parties.