Chinigo v. Ehrenberg

• Decision Date: 29 November 1930
• Citation: Chinigo v. Ehrenberg, 112 Conn. 381, 152 A. 305 (Conn. 1930)
• Court: Connecticut Supreme Court
• Parties: CHINIGO et al. v. EHRENBERG.

152 A. 305

112 Conn. 381

CHINIGO et al. v. EHRENBERG.

Supreme Court of Errors of Connecticut.

November 29, 1930

Appeal from Court of Common Pleas, New London County; Charles B Waller, Judge.

Action by Demtrio Chinigo and others against Samuel Ehrenberg to recover upon a building contract and for extra labor and material.Judgment for plaintiffs on trial to the court, and defendant appeals.

No error.

MALTBIE, J., dissenting.

Charles V. James, Thomas J. Kelly, and Arthur M. Brown, all of Norwich, for appellant.

John H. Barnes and Edwin W. Higgins, both of Norwich, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HINMAN, BANKS, and AVERY JJ.

BANKS J.

The plaintiffs entered into a written contract with the defendant in which they agreed to dig a cellar under a building owned and occupied by him in accordance with certain plans and specifications, for the contract price of $600.The specifications provided that the contractors should excavate the whole area under the building to a depth of seven feet and three inches, remove the old foundations, and build in their place a new twelve-inch stone wall under the sills of the outer wall of the building, place fourteen steel columns to support the girders, and continue the chimneys down to the new cellar bottom.After the plaintiffs had excavated a considerable portion of the cellar the defendant agreed with them that the space directly under the sills of the outer wall should not be excavated, and that the new foundation wall should be built inside the old wall.This was done, and the new wall is adequate and proper to sustain the building.During the course of the work the plaintiffs represented that the work would be delayed if iron columns were used, and the defendant agreed that fifteen yellow pine posts might be substituted for the fourteen iron posts specified.This was done and the posts properly and safely support the building.The plaintiffs did not continue the chimneys to the new cellar bottom, and this change in construction was made with the consent of the defendant.

The court found that there was a substantial performance by the plaintiffs of the work under the contract as thus modified.The defendant now claims that, since the action was brought upon the original written contract, and the judgment is based upon that contract as subsequently modified by parol, the judgment cannot stand because it is based upon facts found but not within the issues raised by the pleadings.This claim comes too late.A claim that there is a material variance between allegations and proof should be made when the offer of proof is made of facts which it is claimed are not within the issues.Nocera v. La Mattina,109 Conn. 589, 145 A. 271.A party cannot take advantage in this court of a claim of variance which was not urged in the court below.Notkins v. Pashalinski,83 Conn. 458, 461, 76 A. 1104, 20 Am. Cas. 1023;Chariott v McMullen,84 Conn. 702, 707, 81 A. 65;Jordan v. Apter,93 Conn. 302, 304, 105 A. 620.

The defendant also claims that the facts found do not support the conclusion of the court that there was a substantial performance of the contract as modified by the subsequent oral agreement.The specifications provided for the cementing of the cellar floor with proper provision for drainage, that the contractors should provide and build clean-out doors in the chimneys, cover the outside cellar stairs with bulkhead doors and hasp lock, place five windows in the cellar, and leave the floors of the building clean.Within a short time after the work was finished a slight...