Birdsall v. Saucier

1992 WL 37731 (Conn. Super. Ct. Feb. 24, 1992)

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Nature of the Case

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Facts

D entered into an open listing agreement with P to sell a building. D was to pay P a commission of ten % of the gross sale price. P found two buyers for the building, Mark Silverstein and Aryeh Shander. Silverstein and Shander signed an agreement agreeing to purchase the building for $1,150,000. The closing occurred on August 15, 1985. At some point between August 6 and August 15, D met with P. P and D made a deal to pay P’s commission part in cash and part in a note from the buyers. At closing, Silverstein and Shander assumed a mortgage in the amount of $560,000. A second mortgage was given to D in the amount of $295,000. P received a check in the amount of $29,500, and Silverstein and Shander gave a third mortgage to D in the amount of $73,000. The note provided for quarterly payments of interest for five years commencing on January 1, 1986. The interest specified was ten percent per annum, and the quarterly interest payments were consequently $1,825. At the end of this period, on August 1, 1991, the unpaid principal balance was to be paid in full. D assigned his entire interest in this note to P. P gave D a written receipt. The receipt acknowledges the payment of $29,500 as a commission for the sale to Silverstein and Shander and the assignment of the $73,000 note. It concludes with the words 'Commission paid in full.' It is signed by P. The sum of these two amounts is $102,500 and is short $12,500. Had the note been fully paid, P would have received $22,500 in interest payments plus $73,000 in principal (admittedly after a delay of five and a half years). Three years later Silverstein and Shander defaulted. D asked P to find a new buyer for the building. Anthony Rugens signed a written offer to purchase the building for $25,000 plus the assumption of all indebtedness (including the indebtedness to P). Silverstein and Shander, however, never signed the offer. D commenced a foreclosure action against them. P was named as a co-defendant in the foreclosure action. P's note and mortgage were rendered worthless. P commenced the present action.