Beckenstein v. Potter and Carrier, Inc.

• Decision Date: 16 August 1983
• Citation: 464 A.2d 6,191 Conn. 120
• Court: Connecticut Supreme Court
• Parties: Louis BECKENSTEIN et al. v. POTTER AND CARRIER, INC., et al.

Page 6

464 A.2d 6

191 Conn. 120

Louis BECKENSTEIN et al. v. POTTER AND CARRIER, INC., et al.

Supreme Court of Connecticut.

Argued April 7, 1983.

Decided Aug. 16, 1983.

Wesley W. Horton, Hartford, with whom were Alexandra Davis, Hartford, and, on the brief, William R. Moller and David L. Fineberg, Hartford, for appellants (plaintiffs).

John Crosskey, Hartford, with whom were Robert Poyourow, Charleston, W.Va., and, on the brief, David J. Elliott, Hartford, for appellee (defendant Gen. Aniline and Film Corp.).

Before PETERS, HEALEY, PARSKEY, GRILLO and DUPONT, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiffs in this case, Louis Beckenstein and Henry Beckenstein (plaintiffs), are the owners and developers of the Wintonbury Mall in Bloomfield, Connecticut. There were originally two defendants in the case: Potter & Carrier, Inc. (Potter & Carrier) was a roofing contractor hired by the plaintiffs in 1969 to install a roof on certain buildings in the mall; General Aniline & Film Corporation (GAF) was the manufacturer of certain roofing material utilized by Potter & Carrier in installing the roof. After Potter & Carrier had completed its work, the roof developed leaks and, by 1975, it had to be completely replaced by the plaintiffs at a cost of about $170,000.

The plaintiffs filed the present action against the defendants on January 28, 1975. Potter & Carrier was defaulted for failure to plead before trial. The case against GAF then proceeded to trial before a jury with Judge Corrigan presiding. At the close of all the evidence on November 12, 1980, GAF moved for a directed verdict, which motion was denied by the court. Thereafter, two theories of liability were submitted for the jury's consideration: (1) breach of contract through the agency of Potter & Carrier; and (2) strict liability in tort for providing defective roofing materials. On November 13, 1980, the jury returned a verdict in the plaintiffs' favor in the amount of $211,569. In response to two interrogatories, the jury found that GAF was not liable on strict tort liability, ¹ but did find that Potter & Carrier was the agent of GAF. ²

GAF then moved, pursuant to Practice Book § 321, for judgment notwithstanding the verdict. On August 3, 1981, the trial court granted GAF's motion and rendered judgment in its favor. The plaintiffs have appealed this decision claiming that there was sufficient evidence to support the verdict and finding of the jury that Potter & Carrier was the agent of GAF. ³ We disagree.

In order to assess the plaintiffs' claims, it is necessary to delineate the evidence adduced in the trial concerning three relationships. We will first examine the relationship between Potter & Carrier and GAF. We will then examine the relationship between the plaintiffs and Potter &amp Carrier. Finally, we will examine the relationship between the plaintiffs and GAF. In reviewing a trial court's action in setting aside a jury's verdict, we are mindful of the fact that the evidence must be considered "in the light most favorable to the plaintiff and every reasonable presumption should be given in support of the correctness of the verdict." Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 604, 419 A.2d 339 (1979); see also Magnon v. Glickman, 185 Conn. ---, pp. ---, --- (43 CLJ 6, pp. 11, 12) 440 A.2d 909 (1981); Pelletier v. Bilbiles, 154 Conn. 544, 546, 227 A.2d 251 (1967). We have also noted, however, that the trial court, in ruling on a motion to set aside a verdict, is in a position where it "can sense the atmosphere of a trial and has an excellent vantage point for evaluating the factors that may have brought the jury to its verdict." Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). Accordingly, its determination should be given consideration.

As early as 1964 Potter & Carrier and GAF entered into an "Approved Roofer's Agreement." Another such agreement was entered into on November 11, 1969, and was renewed on a yearly basis through 1973. Thereafter, Potter & Carrier got into financial difficulty and was no longer an "approved roofer" of GAF.

William Barnett, a technical supervisor for GAF whose area of operation covered the northeast region of the country, testified in regard to the procedures followed by GAF before entering into an "Approved Roofer's Agreement." He stated that the roofer was required to give GAF a list of three jobs it had completed, which GAF went out and inspected. In addition, the roofer had to give GAF a list of projects on which it was currently working, which GAF also inspected. Finally, GAF checked the roofer's financial statements and its arrangement with the "metal men." These procedures were undertaken to ensure that the roofer was both professionally and financially qualified.

Although there is some dispute as to which "Approved Roofer's Agreement" was controlling, in their briefs both parties have relied on the 1969 agreement that was introduced into evidence. ⁴ There are three preliminary clauses in the agreement which recite the general underpinnings to the agreement. The first clause states, in part, that the "Roofer proposes to apply, from time to time as he receives orders for the same, roofs ... manufactured by GAF in accordance with specifications to be selected by the roofer from the various specifications contained in the Specifications Catalog issued by GAF entitled RUBEROID BUILT UP ROOFING ... which book is hereinafter referred to as RUBEROID SPECIFICATIONS BOOK ...." The second clause basically states that GAF is willing to furnish such materials as may be required by the roofer. The third clause states that "GAF is willing, subject to the terms and conditions of this agreement, to furnish a surety bond for each roof ... applied by the Roofer during the term of this agreement, provided that the Roofer ... applying such roof ... complies strictly with the particular specification selected by the Roofer from the RUBEROID SPECIFICATIONS BOOK and the applicable recommendations contained therein and such charges ... which shall be mutually agreed upon in writing ...."

Following these preliminary clauses, there are specific agreements between the parties. The plaintiffs rely heavily on the first paragraph as providing a basis for a finding of agency. That paragraph states as follows: "1. GAF agrees to sell to the Roofer and the Roofer agrees to purchase from GAF, at such prices and upon such terms and conditions as may from time to time be established by GAF, such Roofing Felts, Coated Roofing Products, Dubl--Coverage Roofing, Asphalt, Coal Tar Pitch, Primer, and Composition Flashing materials as may be required by the recommendations applicable to the particular specifications selected by the Roofer from the RUBEROID SPECIFICATIONS BOOK for the application of such roof or roof and flashings." The second paragraph provides, in part, as follows: "GAF agrees that in each case where the Roofer applies only a roof without flashing and such roof is applied strictly in conformity with the particular specifications selected by the Roofer from the RUBEROID SPECIFICATIONS BOOK and applicable recommendations therein contained ... and the Roofer complies with all the other terms, convenants [sic] and conditions of this agreement, GAF will furnish a surety bond in the form attached hereto and made a part of this agreement by reference, or any modification thereof as may from time to time be made by GAF...." The third paragraph provides that the roofer shall pay for the surety bond and further provides "[t]hat in all cases where the Roofer shall be awarded a contract for such roofing jobs and provided GAF shall be called upon to furnish a bond as aforesaid the Roofer will notify GAF to that effect, using for the purpose of such notification Form 'Notice of Award' a copy of which is annexed hereto and made a part hereof, and the Roofer hereby agrees to furnish all detailed information called for in said 'Notice of Award,' and the Roofer further agrees to give GAF notice of the exact date when work on each job shall begin, said notice to be not less than forty-eight (48) hours before the date of the beginning of such job." Paragraph 5 provides, in part, that the roofer will "provide suitable equipment and ... employ sufficient experienced workmen to carry on the work without undue delay and in such manner as will enable GAF to inspect such work ...." The agreement further provides, in pertinent part, as follows: "6. The Roofer agrees that in any and all cases where GAF shall give notice to the Roofer that the roof deck has not been properly prepared, GAF shall not be required to give any bond or guarantee herein referred to unless said roof deck shall be first put in such condition as may be satisfactory to GAF before the application of GAF materials.

"7. The Roofer agrees (a) to construct each roof and flashing, as the case may be, in strict and complete conformity with the specifications selected by the Roofer from the RUBEROID SPECIFICATIONS BOOK for the application of such roof or roof and flashing, and to comply with all provisions contained in the specifications so selected and applicable recommendations and any changes, additions, and alterations thereto as may be mutually agreed upon in writing prior to and during the job applications, and (b) that the decision of GAF as to whether the said specifications and the terms of this agreement have been complied with shall be final, and (c) if GAF decides that the specifications have not been complied with, and that additional workmanship and materials are necessary to justify the issuance of the required surety bond, the Roofer agrees to immediately complete the work as directed by GAF.

"8. Immediately upon the completion of any work coming within the terms of this agreement, the Roofer agrees to notify GAF, using for the purpose of such notification Form 'Notice of Completion,' a copy of which is attached hereto and made a part...