The refusal of the trial court to make a finding of facts in pursuance of the defendant's request for a finding is assigned as error. It appears from the record, however, that an interlocutory judgment for an accounting was entered January 20th, 1912; that at that time the defendant made no request for a finding under § 792 of the General Statutes, but did request the court to make a finding of facts as part of the judgment-file under § 763. No appeal was taken from the interlocutory judgment for an accounting, and the case went to final judgment April 9th, 1913. Under the circumstances, the trial court did not err in refusing to make a second finding of facts pursuant to § 792 of the General Statutes.
As none of the evidence is certified, the objections to findings of fact contained in the judgment-file are unintelligible, and cannot be considered.
The demurrer of the defendant Passon was properly overruled; not only because the conveyance, ExhibitB, is on its face subject to the plaintiffs' lease and contract, Exhibit, A, but also because the trial court has found as a fact that Passon's deed was without consideration, and was given and received to defeat the carrying out of the defendant Rosenthal's agreement contained in Exhibit A.
It is claimed that the plaintiffs violated their contract by selling some of the cattle and horses mentioned in the schedule; but the agreement "to be liable to the party of the first part for the number of cattle as mentioned," is satisfied by the accounting, in respect of which no appeal is taken; and, so far as the working of the farm is concerned, the trial court has found that the animals sold were replaced by others, fewer in number but, from the standpoint of good husbandry, of at least equal value.
The trial court has also found that the agreement of *Page 404 the defendant Rosenthal to construct and repair buildings and to provide tools was the principal consideration for the plaintiffs' entering into and signing the lease and contract, Exhibit A; that the plaintiffs have performed all their obligations therein contained; and that the defendant Rosenthal, after starting to erect the building called for by the agreement, stopped the work without cause and before the building was tenantable, and has thereafter refused and neglected to finish it or purchase all of the necessary tools called for by the contract, although often requested, whereby the value of the premises was greatly diminished and the farm could not be worked at a profit. In view of the character and persistence of the breach, and of the consequent impossibility of working the leased premises at a profit, the plaintiffs were entitled to treat the conduct of the defendants as amounting in law to an attempted repudiation of their contract obligations, so far as they remained unperformed, and were entitled, at their option, to put an end to the continuance of the contract, without prejudice to their claim for damages for the breach. Wells v. Hartford Manilla Co., 76 Conn. 27,55 A. 599; Roehm v. Horst, 178 U.S. 1,20 Sup. Ct. Rep. 780.
It is found that the plaintiffs, by the bringing of this suit, rescinded and intended to rescind this contract; and the prayer for cancellation is to be construed, in the light of this finding, in its literal sense.
The only remaining claim of law, which requires notice, is that the plaintiffs, having entered into possession of the premises as tenants under the lease, cannot repudiate the lease and sue for damages and for foreclosure of their mortgage on the ground of the defendants' breach, without first delivering or offering to deliver the premises to the landlord. The contract, however, provides for such a contingency, for, after *Page 405 reciting that the plaintiffs have deposited with the defendant Rosenthal $2,000 as security for the faithful performance of their contract, and that, if the plaintiffs duly perform, the same shall be returned at the expiration of the lease, the contract goes on as follows: "And it is further agreed by and between the parties hereto that the parties of the second part shall have a lien against the entire farm and buildings thereon erected for the sum of two thousand ($2000) dollars, and the same shall be treated as if a mortgage against the said premises was filed in the office of the county clerk of the town of Branford, State of Connecticut." This language expressly entitles the plaintiffs, at the expiration of the lease or its sooner determination without the plaintiffs' fault, to retain possession of the premises as security for the return of their deposit, and in default of such return they were, when the action was brought, in possession as mortgagees and not as tenants.
There is no error.
In this opinion the other judges concurred, except WHEELER, J., who dissented.