Bertozzi v. McCarthy

• Decision Date: 07 March 1973
• Court: Connecticut Supreme Court
• Parties: Guido BERTOZZI v. Daniel F. McCARTHY et al.

Page 553

323 A.2d 553

164 Conn. 463

Guido BERTOZZI v. Daniel F. McCARTHY et al.

Supreme Court of Connecticut.

March 7, 1973.

Daniel F. McCarthy, for appellants-appellees (defendants).

Herbert V. Camp, Jr., Ridgefield, for appellee-appellant (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

In July, 1965, the plaintiffs, a building contractor, and the defendants, husband and wife, entered into a contract whereby the plaintiff, having title to a lot in Ridgefield, agreed to construct on the lot a house according to certain specifications and on its completion to convey the house and lot to the defendants for an agreed price. The expected date of occupancy was November, 1965. Several circumstances, including the failure of the plaintiff to obtain a construction mortgage and changes in plans induced by the defendants, delayed occupancy until July, 1966. The house at that time was substantially completed, but the plaintiff had not totally discharged his obligation in that the specified garage had not been built and various ancillary construction and cleanup work had not been performed. In addition, the artesian well drilled pursuant to the contract failed to provide potable water.

The defendants refused to pay a portion of the contract price and the plaintiff sued for this balance. The defendants filed a counterclaim for their additional expenses and for damages alleged to have resulted from the delay and from the unfitness of the well water.

The court found that the original contract had been modified by a series of mutual oral agreements and that when the defendants occupied the house in July, 1966, 'the contract was substantially performed but with much left to be done which was the obligations of the plaintiff under the terms of the contract.' In rendering its judgment on the complaint and the counterclaim, the court took into consideration, so far as it found that they had been proved by a fair preponderance of the evidence, the 'extras' provided by the plaintiff, the 'credits' to be extended to the defendants, the reasonable extra expenses the court found to have been incurred by the defendants because of the delay and the cost of the garage which had not been built. The judgment awarded $8765 to the plaintiff on the complaint and $5181.25 to the defendants on the counterclaim. Neither interest nor costs were awarded to any party. From the judgment the plaintiff and the defendants have appealed to this court.

The plaintiff has preserved two claims on appeal. The first is that the court erred in not awarding interest on the judgment from the time that the defendants occupied the house until the date of judgment. In this connection, the court expressly found that the amounts due the parties on the complaint and the counterclaim, respectively, were not liquidated until the date of trial.

" The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.' Bernhard v. Rochester German Ins. Co., 79 Conn., 388, 398, 65 A. 134, 138. The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.' Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374, 379; Wells Laundry & Linen Supply Co. v. Acme Fast Freight, Inc., 138 Conn. 458, 463, 85 A.2d 907; Campbell v. Rockefeller, 134 Conn. 585, 591, 59 A.2d 524. Basically, the question is whether the interests of justice require the allowance of interest as damages for the loss of use of money. Goldman v. Coppola, 149 Conn. 317, 328, 179 A.2d 817; Wells Laundry & Linen Supply Co. v. Acme Fast Freight, Inc., supra. Whether a sum in certain circumstances has been liquidated may, of course, be a useful although not necessarily controlling criterion. Capitol City Lumber Co. v. Sudarsky, 95 Conn. 336, 340-341, 111 A. 349; 22 Am.Jur.2d 256, 263, Damages, §§ 179, 185; cf. Loomis v. Gillett, 75 Conn. 298, 300-301, 53 A. 581. The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court.

In the circumstances of the present case, the trial court clearly acted within the scope of its discretion. Upon finding that the underlying contract had been orally modified in many respects, that it had been substantially performed but that the plaintiff had failed to fulfill his full obligation, and that many of the difficulties and delays were the result of the plaintiff's conduct, the court could reasonably conclude, as it impliedly did, that the defendants had not wrongfully deprived the plaintiff of a sum of money. The findings support a conclusion that the plaintiff was at least partly responsible for the defendants' refusal to pay a portion of the amount due on the contract. Accordingly, we do not find that there was any abuse of the court's discretion.

The plaintiff's second properly preserved claim is that the court erred in determining the allowance due the defendants for the construction of a garage in substitution for the one which the plaintiff failed to construct. The defendants sought and received a 'credit' for the cost of building their own garage, which was of a type different from that specified in the contract. The plaintiff testified that his cost of constructing the garage as specified in the contract would have been $1500. The court, however, awarded a credit of $2400. The plaintiff claims that the award of the higher figure was erroneous in that there was no evidence to support an award greater than $1500.

As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed. Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477, 478; Lee v. Harris, 85 Conn. 212, 214, 82 A. 186. We recognize that '(t)here is no unbending rule as to the evidence by which such compensation is to be determined'; Bachman v. Fortuna, supra, Lee v. Harris, supra; and that damages may be based on 'reasonable and probable estimates.' Keay Petroleum Corporation v. Piergrossi, 137 Conn. 620, 624, 79 A.2d 829. But it is equally clear that damages must be based on evidence. 'In the ordinary contract action the court determines the just damages from evidence offered.' Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 689, 220 A.2d 263, 268. Damages, moreover, may not be based on hearsay. Toti Contracting Co. v. A. J. Orlando Contracting Co.,149 Conn. 473, 478, 181 A.2d 594. We find nothing in the record or in the appendices to the briefs which discloses that any evidence was submitted to the court which would support an award for this contested garage item in excess of the $1500 as to which the plaintiff testified. Under these circumstances, the judgment on the counterclaim must be reduced by the $900 difference between the $1500 which there was evidence to support and the $2400 which the court actually awarded.

In their cross-appeal the defendants press three basic claims. The first is that the court erred in refusing to hear testimony concerning their claim for damages for physical and emotional injuries which they assert resulted from the plaintiff's alleged breach of contract. Specifically, the court sustained the plaintiff's objection to a question directed to the named defendant on his direct examination: 'As a result...