This is an action by the plaintiff to recovermonies paid to the defendant in anticipation of purchasingreal property located in the city of Danbury. Thedefendant appeals1 from the judgment of the trial courtfor the plaintiff allowing the recovery of a portion ofthe money paid for the purchase of the realty.
The trial court could readily have found the followingfacts: On February 17, 1979, the parties enteredinto a written contract for the sale of certain real estatein the city of Danbury. The contract provided for a purchaseprice of $35,900 with a 10 percent deposit of$3590, which was paid at the time the contract wassigned. The contract provided for a closing date ofMarch 15, 1979. It further provided that any modificationwould have to be in writing, and contained adefault clause which stated that "all monies paid by thepurchaser hereunder" would be retained as liquidateddamages in the event of the purchaser's default. Theplaintiff, who was the purchaser in this case, was unableto obtain a mortgage and hence was unable to closeby March 15, 1979.
The plaintiff claimed that between the date of the executionof the contract and the closing date, an oralagreement was entered into whereby the defendantwould convey to the plaintiff a one-half interest in theproperty upon payment by the plaintiff of 50 percentof the equity in the property. The defendant contendedthat an additional $8500 paid by the plaintiff was foran extension of time on the closing date. No interestin the property was ever transferred. The plaintiff institutedthis action seeking to recover the downpaymentof $3590, plus the additional $8500 which he had paidto the defendant.
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The trial court found that there had been no validmodification of the original contract; hence, its provisionsremained in effect. Thus, the defendant wasentitled to retain the deposit of $3590 as liquidated damagespursuant to the terms of the agreement. Withoutsuch modification of the original contract, however,the plaintiff was entitled to the return of the $8500,paid after the original contract was terminated, on theground of unjust enrichment.
The defendant first claims that the trial court erredin permitting the plaintiff to testify concerning analleged oral agreement whereby the defendant was toconvey a 50 percent interest in the real estate to theplaintiff on the basis that the testimony was in violationof (1) the parol evidence rule, and (2) the statuteof frauds.
We consider the parol evidence argument first. Theparol evidence rule is a rule of substantive law whichprovides that "[w]hen two parties have made a contractand have expressed it in a writing to which they haveboth assented as the complete and accurate integrationof that contract, evidence, whether parol or otherwise,of antecedent understandings and negotiationswill not be admitted for the purpose of varying or contradictingthe writing." 3 Corbin, Contracts 573. "Itis, however, well settled that the parol evidence ruledoes not have any application to subsequent agreements."Calamari & Perillo, Contracts (2d Ed.) 3-6.The contract in question specifically indicates that theagreement constituted the entire agreement2 between
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the parties, and the oral agreement alleged was subsequentto the execution of this agreement. In thisinstance, therefore, the parol evidence rule is inapposite.
We now consider the statute of frauds argument. Ifan agreement falls within the statute of frauds; GeneralStatutes 52-550; there are certain conditionswhich must be met before oral testimony will be allowedas to the agreement. There must be preliminary proofestablishing that there was some agreement in pursuanceof which the plaintiff has acted in part performancebefore the court will accept oral testimony as towhat the nature and terms of that agreement were.Verzier v. Convard, 75 Conn. 1, 7, 52 A. 255 (1902).This preliminary evidence generally is that of conduct.Id. "Under the rule well established by the authorities,it must appear that these acts are of such a characterthat they can be reasonably and naturally accountedfor in no other way than that they were performed inpursuance of a contract between the parties, andthough they cannot indicate all the terms of the agreement,they must be in conformity with its provisions.Van Epps v. Redfield, 69 Conn. 104, 110, 36 A. 1011; Verzier v. Convard, 75 Conn. 1, 7, 52 A. 255, and cases cited." Santoro v. Mack, 108 Conn. 683,691, 145 A. 273 (1929). "Whenever acts of partperformance are made out which thus point to a contract,the door is opened, and the plaintiff may introduceadditional parol evidence directed immediately tothe terms of the contract relied upon . . . ." Andrewsv. Babcock, 63 Conn. 109, 122, 26 A. 715 (1893).
In this case, it is illogical to assume that the plaintiffwould have paid an additional $8500 to the defendantto extend the contract when he could not obtain financingto complete the original contract. Hence, the statuteof frauds objection has been overcome and theevidence was properly admitted.
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The defendant next claims that the trial court erredin holding that the defendant's agreement to extendthe closing date was not a valid modification of the realestate contract. The defendant's contention that the$8500 was paid to extend the closing date and not forthe purchase of a 50 percent interest in the realty posesa question of fact for the trier to decide. The trial courtheard testimony from both the defendant and the plaintiffon this issue. It is axiomatic that it is in the provinceof the trial court to assess the credibility ofwitnesses. State v. DeForge, 194 Conn. 392, 398,480 A.2d 547 (1984); Damora v. Christ-Janer, 184 Conn. 109,112-13, 441 A.2d 61 (1981). Holden & Daly, ConnecticutEvidence (Sup. 1983) 125(a), pp. 449-50. Thetrier is privileged to adopt whatever testimony it reasonablybelieves to be credible. Klein v. Chatfield,166 Conn. 76, 80, 347 A.2d 58 (1974).
From reading the memorandum of decision, itappears that the trial court did not resolve this factualdispute in favor of either party, apparently not findingeither witness sufficiently credible. The trial courtconcluded only that there was no valid modification ofthe real estate sales contract. It was not necessary tomake a finding beyond this. We will not reverse thedecision of the trial court unless it is clearly erroneousin light of the evidence and the pleadings in the recordas a whole. Practice Book 3060D; Pandolphe's AutoParts, Inc. v. Manchester, 181 Conn. 217, 221,435 A.2d 24 (1980).
The defendant farther claims that the trial courterred in ruling that the defendant's damages for breachwere limited to the initial 10 percent deposit pursuantto the liquidated damages clause in the contract. Sincethe trial court found that the contract terminated onMarch 15, 1979, due to the plaintiff's failure to complywith its conditions, it properly awarded the defendantthe 10 percent downpayment of $3590 as liquidated
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damages in accordance with the contract terms;amounts paid after termination of the contract werenot paid under the contract and were not covered bythe agreement's liquidated damages provision. A partymay provide for the retention of a deposit as liquidateddamages for the purchaser's failure to perform. LittonIndustries Credit Corporation v. Catanuto,175 Conn. 69, 75, 394 A.2d 191 (1978); Frank Towers Corporationv. Laviana, 140 Conn. 45, 53-54, 97 A.2d 567(1953).
The defendant's final contention is that the trial courterred in ruling that the defendant had been unjustlyenriched to the extent that he had received monies overand above the initial 10 percent deposit. The trial courtconcluded that because no valid modification of thesales agreement occurred, the plaintiff was entitled tothe amount he paid to the defendant after March 15,1979, i.e., $8500. "The purchaser's right to recover inrestitution requires the purchaser to establish that theseller has been unjustly enriched." Vines v. OrchardHills, Inc., 181 Conn. 501, 510, 435 A.2d 1022 (1980)."[A] purchaser whose breach is not willful has a restitutionaryclaim to recover moneys paid that unjustly enrich hisseller." Id., 509; see Montanaro Bros. Builders, Inc. v.Snow, 190 Conn. 481, 460 A.2d 1297 (1983).
Here, the defendant retained, in addition to the liquidateddamages of $3590 as spelled out in the contract,the amount of $8500. We see no reason to disturb thetrial court's conclusion that the defendant, as a seller,has been unjustly enriched to the extent he receivedmonies over and above the liquidated damages providedin the written contract.
There is no error.
In this opinion the other judges concurred.
1. This appeal, originally filed in the Supreme Court, wastransferred to this
2. Paragraph two of the contract provides in part as follows: "Thiscontract constitutes the entire agreement between the parties and may notbe changed except by a contract in writing signed by the party or partiesagainst whom enforcement of any waiver, change, modification, extension,estoppel, or discharge is sought."Page 40