Charter Oak Estates, Inc. v. Kearney

• Decision Date: 24 March 1971
• Citation: 160 Conn. 522,280 A.2d 885
• Court: Connecticut Supreme Court
• Parties: CHARTER OAK ESTATES, INC. v. Paul T. KEARNEY et al.

Page 885

280 A.2d 885

160 Conn. 522

CHARTER OAK ESTATES, INC. v. Paul T. KEARNEY et al.

Supreme Court of Connecticut.

March 24, 1971.

John F. Lambert, Greenwith, for appellants (defendants).

Robert E. Nickerson, Greenwich, with whom was John B. Marsh, Jr., Greenwich, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

RYAN, Associate Justice.

In the first count of this action the plaintiff seeks to recover the reasonable value of certain work, labor and services performed at the request of the defendants consisting of the relocation and resurfacing of a driveway and the draining and filling of a pond on lot 5 of the defendants' land, of the reasonable value of $18,707.25. The second count is predicated on the same allegations of fact but damages are claimed on the ground of unjust enrichment

The defendants answered admitting that demand for payment had been made by the plaintiff as alleged in the first count, and denying the remaining allegations of both counts. The defendants also pleaded three special defenses. In the first special defense it was alleged that the plaintiff represented to the defendants that the cost of the work involved would not exceed the sum of $2500; that the defendants relied on the representations of the plaintiff, informed the plaintiff of such reliance and of the necessity of limiting the cost to $2500 and agreed to have the work done; that the plaintiff proceeded to do the work and at no time informed the defendants that the cost to the defendants would exceed $2500 until February 24, 1966, after the completion of the work. In the second special defense the defendants alleged that at the closing, when title to the properties in question was conveyed to the defendants, the plaintiff set forth claims for various additional work and extras but made no claim for payment for the additional work sought in this action, and that the payment of these extra sums was in full settlement of all extras and obligations between the parties to the date of the closing on December 6, 1965, other than the sum of $2500. In the third special defense the defendants alleged that the failure of the plaintiff to make a claim for that portion of the work furnished prior to the date of closing was a waiver by the plaintiff of any claim for this sum. The plaintiff denied the allegations of the defendants' special defenses. The trial court rendered judgment for the plaintiff to recover the sum of $18,731.50 from the defendants on the first count. Judgment was rendered for the defendants on the second count. From the judgment on the first count the defendants have appealed to this court.

In their assignments of error the defendants have made a wholesale attack upon the finding, despite our repeated strictures against this practice. State v. Dukes, 157 Conn. 498, 499, 255 A.2d 614. The defendants seek the addition of forty-four paraguaphs of their draft finding on the ground that the facts set forth therein were admitted or undisputed, and claim that fourteen paragraphs of the court's finding were found without evidence. 'Facts can be added to the finding only when they are admitted or undisputed. A fact is not admitted or undisputed merely because it has not been contradicted. The question of credibility is one for the trier. Shakro v. Haddad, 149 Conn. 160, 162, 177 A.2d 221.' Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430, 431. If the claimed additions are implicit in the finding or are facts not material to the issues in the case, the trial court is not required to include them in the finding. Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d 619. The additions sought by the defendants are either implicit in the finding or not material or undisputed. None of the findings attacked in their brief is unsupported by the evidence.

It should be noted at the outset that while the complaint alleged 'draining and filling a pond', the parties stipulated that the claim was for labor and material for an additional driveway and for filing in a depressed area on lots 4 and 5.

The court found the following facts: Richard E. Doyle, the principal witness of the plaintiff, was the president of the plaintiff corporation and had been in the construction business since 1948 as a construction superintendent and estimator. All the negotiations and the acts of the plaintiff corporation were carried on by Doyle, which fact was known to Paul T. Kearney, hereinafter called the defendant. All the negotiations and the acts of the defendants, Paul and Elizabeth Kearney, were conducted by Paul Kearney. Doyle and the defendant were on friendly and social terms and each had confidence in the other. In 1965 the plaintiff had a number of lots for sale on Nathan Hale Drive in Stamford. Early in 1965, the defendant entered into negotiations with Doyle to purchase a lot in this area in order to have a house built thereon by the plaintiff. On May 15, 1965, the plaintiff and the defendant signed a contract wherein the plaintiff undertook to construct a dwelling on lot 4 of this development, and to convey lot 4 and the dwelling to the defendants. The contract was composed of the basic contract, specifications and plans. In late August and early September, 1965, the plaintiff orally agreed to sell lot 5 to the defendants for the sum of $16,000. No money was paid in connection with this agreement until the closing of title on December 6, 1965. In early September, 1965, when the plaintiff and the defendants discussed the purchase of lot 5 by the defendants, Doyle suggested to the defendant that a depressed area on lots 4 and 5 be filled in for aesthetic purposes. The area to be filled was horseshoe-shaped, ranging from twenty-seven to thirty-five feet in depth, and located on lots 4 and 5. At times water flowed from a pond located to the north of the subject property underneath Nathan Hale Drive through the depressed area and thence to a pond located on lot 5. Doyle informed the defendant that while he did not know exactly what the cost of such work would be, he would estimate its cost at around '$2500.' This estimate was based on Doyle's expectation of obtaining fill from other sites in the area owned by the plaintiff corporation including the property being sold to the defendants. The defendant knew when this estimate was made to him that it was based on the fact that the materials were expected to come from the plaintiff's property and the property being purchased by the defendants. In September, 1965, the plaintiff proceeded to do the work. Subsequent to the agreement for the sale of lot 5 and the agreement concerning the filling operation, the plaintiff and the defendants agreed to extend the length of the driveway partially over the area to be filled in. In October, 1965, Doyle became aware of the fact that costs were going to run beyond expectations because he was obliged to go to the open market to buy fill. The cost of fill obtained and the equipment rented was skyrocketing. Doyle explained to the defendant the difficulties he was having in getting fill because of a large Stamford project which was underway, where as previously he had been getting the fill from the plaintiff's own land, the latter method, of course, being of benefit to the defendant obviously reducing costs. The defendant knew in October, 1965, that as of that time Doyle was forced to go into the open market to purchase fill. This was an expenditure not originally contemplated by the parties. In early October, 1965, the plaintiff commenced purchasing outside labor and material in connection with the filling operation. All labor, machine work and material used for this filling operation and the work on the additional driveway were accounted for on a day-to-day basis to the plaintiff's employees. Doyle himself did not deep a record of and was unaware of the exact cost involved since he was being pressed by the defendant to get the house completed. Doyle himself did some of the work on the house and spent all his waking hours in the Kearney house to complete its construction. When the defendant was informed in October, 1965, that costs were exceeding the estimate of about $2500, he inquired as to how much this amounted to, and was informed by Doyle that he could not tell him at that time. The defendant thereupon told Doyle to proceed with the job and get it done and keep the costs down to a 'slow roar'. The period covered by these operations began in September, 1965, and terminated in late January, 1966. Sometime in December, 1965, the date of the closing involving lots 4 and 5, Doyle and the defendant had a further discussion at which time Doyle told the defendant that since the work of filling and relocating the driveway had not been completed, the billing on those items would be drferred until the work was finished.

At...