The sole issue in this case is the enforceability by third party beneficiaries of a contract allegedly abandoned by the promisor and promisee. The plaintiffs, Mia Rowe, Elaine DiStasi, Edmund DiStasi, Lawrence DiStasi and Anthony DiStasi, brought an action seeking damages and the imposition of a constructive trust upon real and personal property of the defendant, Leo Paul Cormier. The trial court, after a full hearing, rendered a judgment for the defendant and the plaintiffs have appealed.
In its memorandum of decision, the trial court found the following facts. The plaintiffs were the children by a previous marriage of Margaret Cormier, the defendant's deceased wife. In 1970, as a result of marital difficulties, Margaret Cormier
The trial court further found that, after execution of this agreement, the Cormiers resumed their married state and lived together until Margaret Cormier's death in 1978. No steps were ever taken by either of the Cormiers to perform or to compel performance of the agreement. The agreement was abandoned. At the time of Margaret Cormier's death, the agreement was no longer viable and enforceable. The plaintiffs therefore could not prevail in their 1979 action on this agreement.
The plaintiffs, on this appeal, argue that the trial court was in error in its conclusion that the agreement between Margaret Cormier and the defendant had been abandoned at the time of Margaret Cormier's death in 1978. The plaintiffs do not contest the well-established rule that rescission or abandonment of contracts, like entry into a contractual
There was ample evidence to support the finding of abandonment. Attachments that had been placed on the defendant's property in connection with the divorce proceedings initiated by Margaret Cormier in October, 1970, were released the following February without any performance whatsoever of the terms of the November, 1970, agreement. Margaret Cormier was represented by her own attorney during this time. The defendant testified that, upon their reconciliation, he and Margaret Cormier agreed to "forget about" their prior agreement, and that, in his presence, Margaret Cormier so informed her attorney.
Taken as a whole, this record demonstrates that the trial court's finding of abandonment was not clearly erroneous. The plaintiffs have not claimed that Margaret Cormier and the defendant lacked the power to abandon their November, 1980, agreement. We expressly reserve for another day the question of what circumstances, if any, may suffice to vest rights in third party beneficiaries so that a promisor and promisee may not thereafter modify or abandon their contractual obligations to such beneficiaries. See 2 Restatement (Second), Contracts (1981) § 311; E. Farnsworth, Contracts (1982) § 10.6.
There is no error.