Luttinger v. Rosen
In Luttinger v. Rosen, 164 Conn. 45, 316 A.2d 757 (1972), the plaintiffs sought to purchase a home. The contract was subject to the plaintiffs obtaining mortgage financing of no greater than 8.5 percent. Id., 46. The plaintiffs applied for a loan at, what the plaintiffs' experienced attorney knew to be, the only institution that would lend the amount of money needed for the type of dwelling in issue. Id.
The mortgage commitment was obtained at a rate of 8.75 percent, which was too high under the contract. Id. The plaintiffs sought to get back their down payment from the defendants, and the defendants refused. Id., 47.
On appeal, the Court concluded that the knowledge of plaintiffs' attorney of lending rates in and out of the area adequately supported the conclusion that due diligence was used in seeking mortgage financing, even though the plaintiffs went to one bank only. Id. The Court rejected the defendants' argument that applications should have been made at other institutions, stating that "the law does not require the performance of a futile act." Id.
In Luttinger, the defendants, through counsel, offered to make up the difference between the interest rate offered by the bank and the 8.5 percent rate provided for in the contract by a "funding arrangement," which the plaintiffs did not accept. Id., 46-47.
The Court stated that "any additional offer by the defendants to fund the difference in interest payments could be rejected by the plaintiffs." Id., 48.