Savage v. Shannon Construction Co., LLC

Full title: THOMAS SAVAGE v. SHANNON CONSTRUCTION COMPANY, LLC

Court: Connecticut Superior Court, Judicial District of Waterbury at Waterbury

Date published: Aug 28, 2003

2003 Ct. Sup. 10012 (Conn. Super. Ct. 2003)

Opinion

No. CV01-0166152S

August 28, 2003

MEMORANDUM OF DECISION

GALLAGHER, JUDGE.

The plaintiff entered into a contract to purchase a home to be built by the defendant. The plaintiff applied for a mortgage and received a conditional commitment. The commitment was based on the plaintiff's sale of his current home. The plaintiff did not sell his home, and never received a mortgage commitment. The contract called for an additional deposit at the time of the mortgage commitment. The plaintiff paid and the defendant accepted the additional monies at the time of the conditional mortgage commitment. The plaintiff continued to make payments to the defendant. Additionally, he purchased several items to be used in the home. As the closing date approached, the plaintiff had no contract of sale for his home. After having written to the plaintiff reminding him that the house was nearly complete and requesting information as to whether he still intended to purchase the home, the defendant, having received no response, entered into a contract with another buyer. After trial, the court found that the defendant breached the contract because he entered into a contract with another person prior to the closing date stipulated on the contract between the parties here. Based on the evidence, the court determined that there was no CUTPA violation.

The issue now before the court is the measure of damages.

Discussion

What actually occurred in the instant case was an anticipatory breach by the defendant. "An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived." McKenna v. Woods, 21 Conn. App. 528, 532 (1990); Martin v. Kavanewsky, 157 Conn. 514, 518-19 (1969).

As the plaintiff points out, the damages in a contract action should place the injured party in the same position that he would have been in had the contract been fully performed. Williams v. Breyer, 21 Conn. App. 380, 384 (1990). The question posed is in what position would the plaintiff have been in had the defendant not breached the contract by prematurely entering into a contract with another buyer. The plaintiff produced no evidence to show that he was ready, willing, and able to perform under the contract. On the contrary, the evidence clearly showed that the plaintiff would not have been able to obtain the mortgage by the closing date. Since the plaintiff continued to apply for mortgages, the only logical inference is that without the mortgage, he would not have been able to close. Although ordinarily, the proper "measure of damages for breach of contract of sale is the difference between the contract price and the value of the property at the time of the breach of the contract," that is not the proper measure of damages in the instant case. The plaintiff produced no evidence that he had a reasonable expectancy of completing the purchase of the home. "To the contrary, his failure to respond to the defendant's written inquiries constitutes evidence of his inability to do so.

"To recover damages based on an anticipatory breach . . . the injured party need . . . show . . . that he would have been ready, willing and able to perform had there been no repudiation." McKenna v. Woods, 21 Conn. App. 528, 534 (1990). Because the plaintiff failed to produce evidence that he would have been willing, ready, and able to perform had there been no repudiation, he is not entitled to expectancy damages.

The plaintiff seeks "reliance damages." "Reliance damages may be the measure of damages in a claim based on a theory of promissory estoppel, . . . loss incurred by the plaintiff in reasonable reliance on the promise, i.e. reliance damages ." A fundamental element of promissory estoppel, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise, if judged by an objective standard, he had no reason to expect any reliance at all. Swihart v. Country Home Bakers, 1999 WL 545385, *3 (Conn.Super. 1999). See Finley v. Aetna Life Casualty, 202 Conn. 190, 205, 520 A.2d 208 (1987). With no assurance to the defendant that he was a ready, willing, and able buyer at the time of the breach, the plaintiff is not entitled to reliance damages. Moreover, the plaintiff based action on breach of contract theory, not that of promissory estoppel.

The court finds that, based on the evidence, the defendant did receive a benefit from the plaintiff in that it had use of the plaintiff's money interest-free. The proper measure of damages is the interest due to the plaintiff on the sums paid to the defendant. The defendant is ordered to pay interest at the rate of 10% per annum on the following amounts: (a) $8,580 from December 26, 2000 to the date of repayment; (b) $8,580 from January 3, 2000 to the date of repayment; and (c) $7,481.66 from April 27, 2000 to the date of repayment. The court finds that the defendant wrongfully withheld the $600 in "storage" charges. The defendant is therefore ordered to pay back the $600 plus interest on the $600 from the date it was initially wrongfully withheld until the $600 is repaid.

GALLAGHER, J.