City Lumber Co. Of Bridgeport Inc. v. Borsuk

• Decision Date: 21 February 1945
• Parties: CITY LUMBER CO. OF BRIDGEPORT, Inc., v. BORSUK et al.
• Court: Connecticut Supreme Court

131 Conn. 640

41 A.2d 775

CITY LUMBER CO. OF BRIDGEPORT, Inc.,

v.BORSUK et al.

Supreme Court of Errors of Connecticut.

Feb. 21, 1945.

Appeal from Court of Common Pleas, Fairfield County; McDonough, Judge.

Action by the City Lumber Company of Bridgeport, Inc., against Tessie Borsuk and others to foreclose mechanic's liens. Trial to the court resulted in a judgment determining the rights of the parties, and named defendant appeals.

Error in part and case remanded with directions.

Raphael Korff, of Bridgeport (Benjamin M. Leipner, of Bridgeport, on the brief,) for appellant (named defendant).

Herbert L. Cohen, of Bridgeport, for appellee (plaintiff).

H. Norman Kusnitz, of Bridgeport, for appellee (defendant Harry Rievman).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

This foreclosure involves the validity of and, if valid, the amount due on two mechanics' liens. The finding, as corrected, recites the following facts material to the questions discussed on this appeal: In May, 1941, the defendant Borsuk, hereinafter referred to as the defendant, contracted with Paul Hahn for the construction of a six-room house and garage for $6900 in accordance with plans and specifications. The contract specified the times and amounts of payments. The plaintiff commenced to furnish materials on August 12, 1941, and made the last delivery on November 27, 1941. Harry Rievman had the subcontract for the plumbing and heating. He started to furnish materials and render service on September 1, 1941, and ceased on January 21, 1942. Both the plaintiff and Rievman were familiar with and relied on the general contract of May, 1941, between the defendant and Hahn before they started to furnish materials.

Hahn failed to complete his contract, and the balance due him was insufficient to pay the subcontractors and finish the house. On December 31, 1941, the plaintiff served on the defendant a notice of its intention to claim a lien. The following statement appears on this notice: ‘Within & foregoing is true and attested original notice of intention to file mechanics lien served by me on this day.’ On March 20, 1942, Rievman served a similar notice, bearing the following legend: ‘Then and there by virtue of the original notice of intention to claim a lien, I served notice Tessie Borsuk, the within & foregoing is a true copy of the original notice of intention to claim a lien with my doings thereon endorsed.’ Both were signed by indifferent persons.

The defendant objected to the introduction of this latter notice of intent on the ground that there was no allegation in the pleadings to support it. The objections were overruled and Rievman was given permission to amend his pleadings so as to make the evidence admissible. The record shows that this amendment was filed on September 7, 1943, two months after judgment, but as of the date when permission to file was given, May 25, 1943, the first day of the trial. Both of these parties eventually filed mechanics' liens.

The defendant maintains that certain items should be deducted from the unpaid balance of the contract price in determining the amount remaining due under it. Two of these are based upon claimed defects in the performance of work, but the finding of the trial court that it was not defective in the respects specified must stand. One item was a payment for certain work which the defendant now claims was made in the mistaken belief that it was an extra, when in fact it was work called for by the terms of the contract; but as the trial court has found that it was an extra, and that finding is not open to attack, the basis of this claim is destroyed. Another of the items was a sum of money which the plaintiff claims to have been a payment in advance of the time when it was due under the contract; the finding that this was an advance payment and not a loan to the contractor must stand; and, as it was made after the plaintiff had begun to furnish material under its contract to the knowledge of the defendant, she was not, under the express provisions of § 5108, entitled to the benefit of it against the plaintiff's claims.

The allowance of Rievman's amendment was assigned as error. Permission to amend was granted on the first day of the trial and the amendment eventually filed was, by order of court, filed nunc pro tunc as of that day. The ruling was not erroneous under the circumstances. Ireland v. Connecticut Co., 112 Conn. 452, 454, 152 A. 614. While the failure to file the amendment was evidently due to oversight on the part of Rievman, and he could have avoided the defect in the pleading, the defendant, having acquiesced in the continuance of the trial upon the basis that the amendment would be filed and not having thereafter raised any objection to the decision of the case as though it had been filed, is hardly in a position to claim that the court might not permit the technical defect to be remedied nunce pro tunc. See 28 Words & Phrases, Perm. Ed., p. 981; 1 Freeman, Judgments, 5th Ed., § 121; note, 3 A.L.R. 1403.

The defendant also claims credit for $450 paid by her for an oil burner. This was included in the original contract, but on July 17, 1941, prior to the time when either lienor commenced to furnish materials or services, the contract was modified without notice to them so as to permit the defendant to buy and pay for the oil burner. Payment was made by the defendant subsequent to the date when the lienors commenced to furnish materials and render services. The trial court concluded that this payment was not made in good faith.

This conclusion cannot be sustained on the facts found. General Statutes, § 5108, provides that an owner shall have credit for payments made to contractors in good faith before receiving notice of liens, but that: ‘No payments made in advance of the time stipulated in the original contract shall be considered as made in good faith, unless notice of intention to make such payment shall have been...