Grippo v. Davis , 92 Conn. 693 ( 1918 )

The principal grounds of error assigned in the appeal are the overruling of the plaintiff's claims of law: (1) that the defendant had waived the provisions of the agreements as to payments; (2) that the acceptance of the payments other than as provided in the agreements amounted to a substitution payment for the payments of the original agreements; (3) that the defendant did not have the right to rescind the agreements; and (4) that the plaintiff was entitled to a decree for specific performance.

The agreements to purchase the defendant's lots, followed by payments upon the purchase price, gave the plaintiff's father an equitable interest in these lots to which the plaintiff succeeded. Miller Co. v. Grussi,90 Conn. 555, 557, 98 A. 90. The plaintiff, ever since acquiring this interest, and his father, for a long period, failed to make the weekly payments as provided in the agreements. The provision for weekly payments was one which the defendant might waive. This she might do by express declaration, or by a course of conduct equivalent to such a declaration. The receipt of payments by the defendant on account of the purchase price, in varying amounts and at irregular times through a long period, continued during the period of interest of the plaintiff until the refusal to accept the payment tendered on February 1st, 1916, constituted a waiver of the provision for weekly payments during this time. As a general rule, a waiver must be found as a fact, since the intentional relinquishment of a known right is the foundation of a waiver, and this intent, to be found, must be proved. But when the intent, though not expressly found, is yet the necessary inference from the facts found, as in this case, the intent may be inferred as matter of law. First National Bank v. HartfordLife Annuity Ins. Co., 45 Conn. 22, 44.

While we are of the opinion that these payments constituted a waiver of the provision for weekly payments so long as they continued, we do not think they abrogated this provision of the agreements and substituted the practice of payments for those provided. The defendant was at liberty at any time to insist upon the resumption of this provision. Before she could do this she must in fairness give the plaintiff notice of her intention so to insist, and a reasonable opportunity to comply. 2 Black on Rescission Cancellation, pp. 1395, 1396.

Having received for so long a time payments of substantially $10 a month, she was not at liberty to decline to receive the payment tendered on February 1st, without prior notice of such intent. She had the right at this time to give notice of her intent to thereafter insist upon the weekly payments. This she did not do. On the contrary, she refused the payment tendered and orally gave notice that she rescinded the contract.

Since the defendant had waived the weekly payments by accepting, substantially, monthly payments, and had accepted a payment made in January, 1916, and given no notice of her intention to resume the provision for weekly payments, the plaintiff was not in default on February 1st, when the last tender of payment was refused. Much less was the plaintiff in default for four or two weeks, conditions precedent by the terms of the agreements to her right to rescind.

The defendant's attempt to rescind was wholly nugatory. Neither then, nor at any time in the future, did the defendant notify the plaintiff of her purpose to require the weekly payments. Her refusal to accept the usual payment and her abortive attempt to rescind the contract, relieved the plaintiff from the necessity of subsequently tendering the weekly payments. The plaintiff was not compelled to make this tender, since the defendant's conduct made it clear that this would be a useless act.

In this situation three courses of action were open to the plaintiff. He might wait a reasonable time for the defendant to withdraw her rescission, or insist upon his right to carry out the agreements according to their terms by making the weekly payments therein provided, or he might tender in full the amounts due under the agreements. He chose the latter course and made tender of $693, which sum, the complaint alleged, was the entire balance of the purchase price agreed upon, and the answer admitted this. Having done this he had done all that he could do.

The defendant has an erroneous view of the situation. The plaintiff was not in default on February 1st nor at any time since. By her attempted rescission, the defendant had signified her understanding that the agreements were at an end, and her purpose to act upon that understanding, and this relieved the plaintiff from making tender of the weekly payments. Assuming that the plaintiff had the right to make a tender of the amount due, the defendant insists that the tender was inadequate because it failed to include interest upon the overdue payments. Whether interest shall be added to a principal sum depends upon the circumstances. These may negative such a claim. The admissions of the pleadings in this case recite that the tender was of the entire balance of the purchase price agreed upon. It could not have been this if in addition to this balance a substantial sum by way of interest ought to be added. In view of this admission we think the question of the addition of interest to the weekly payments due did not arise, and that the tender must be held to be adequate. The time of performance was waived by the acceptance of the payments.

There is error, the judgment is reversed with direction to the Superior Court to enter judgment in accordance with prayer for relief, upon payment to defendant of $693.

In this opinion the other judges concurred.