City of Bridgeport v. United States Fidelity & Guaranty Co.

• Decision Date: 30 July 1926
• Citation: 105 Conn. 11,134 A. 252
• Parties: CITY OF BRIDGEPORT v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Connecticut Supreme Court

134 A. 252

105 Conn. 11

CITY OF BRIDGEPORT v. UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Errors of Connecticut.

July 30, 1926

Reargument Oct. 26, 1926.

Appeal from Superior Court, Fairfield County; John W. Banks, Judge.

action by the City of Bridgeport against the United States Fidelity & Guaranty Company on a bond given by defendant as surety for the Empire Construction Company to plaintiff, tried to the court upon a demurrer to the substituted complaint which the court overruled, and thereafter upon a demurrer to the answer to the substituted complaint which the court pro forma overruled, and thereafter tried to the jury. Verdict and judgment for plaintiff to recover $98,305.05, and defendant appeals from the denial of its motion to set aside the verdict, and from the rulings on the demurrers, and in charging the jury and in the refusal to charge. Error, and new trial granted.

Evidence held not to sustain finding that city was under obligation to pay bridge contractor by reason of delay of second bridge contractor beyond stipulated time in completing contract, and hence city might not recover from surety of second contractor.

Carl Foster and Lorin W. Willis, both of Bridgeport, for appellant.

William H. Comley and Alexander L. De-Laney, both of Bridgeport, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J.

We consider first the denial of the motion to set aside the verdict. The following facts are either admitted or undisputed: In August, 1915, the city of Bridgeport caused to be prepared plans and specifications for a completed drawbridge to be constructed across the Pequonnock river in Bridgeport. Its six parts comprised substructure, fixed span substructures, movable span substructures, operators' and comfort houses, approaches, and removal of existing structures and dredging channel. These plans and specifications were submitted to Empire Construction Company hereinafter called Empire Company, and it submitted a bid for the completed bridge. Holbrook, Cabot & Rollins Corporation, hereinafter called Holbrook Corporation, submitted a bid for all parts of the bridge except the movable span superstructure, and plaintiff on October 5, 1915, entered into a written contract to build the bridge with the exception of the movable span superstructure, and to complete the work on or before October 31, 1916. The Empire Company also submitted its bid to build the movable span superstructure and on October 19, 1915, entered into a written contract with the plaintiff for the construction of the movable span superstructure. It at this time had full knowledge of the contract with the Holbrook Corporation.

Before the new bridge was undertaken. there was a bridge at this point. In order to keep the traffic moving, it was necessary that the old bridge remain in operation until the new bridge or a part of it be in operation. Accordingly, the construction of the bridge was divided into two parts, a northern and a southern half. The northern was to be, and was, built first, and after its completion traffic was turned over it, thus enabling the old bridge to be removed and the southern half of the bridge to be built. When this half was completed, the two units made a completed structure.

The substructure of the bridge is the part from the foundations to the lower part of what is called the superstructure, that is, it is the piers upon which rests the upper part of the bridge. The fixed span of the superstructure was the traffic carrying part. It is located on each side of the bascule span. This was the draw part of the bridge; this kind of a drawbridge is called a jackknife bridge. It opens and shuts to let boats pass through. This bridge is composed of four parts, two on its east and two on its west side, and each separated from the other, and when down making a level and uniform highway surface. In both the Holbrook Corporation and the Empire Company contracts it was provided that the old bridge should be maintained for traffic until the north half of the proposed bridge should be completed and open for traffic, and that thereafter the old bridge should be demolished and the new bridge completed within the time limited by these contracts.

The Empire Company submitted its bid and entered into its contract with the full knowledge of the Holbrook Corporation contract, and that the execution and completion of the latter contract was dependent upon the full performance by the Empire Company of its contract. The contract of the Empire Company required it to commence the work thereunder within 10 days of the date thereof, and furnish all anchorages, supports, grillages, etc., which were to be built up with masonry, within 60 lays from the agreement, and to complete the north half of the bridge and place the same in operation within 90 days after receiving notice that the north half of both bascule piers was ready for the movable span superstructure. The Holbrook Corporation got the north piers ready for the superstructure on December 1, 1916; the Empire Company having notice of this a month before. The superstructure which was to be completed in 90 days was completed August 17, 1917. Until this was completed the Holbrook Corporation was not able to proceed with the substructure for the south half, and traffic could not be diverted from the old bridge until the north half of the bascule span was ready for it. The delay in completing the north half until August 17th compelled the Holbrook Corporation to carry on the building of the substructure into the severe winter months. Doing the work in these months after August 17th made the work harder and slower than if done in the spring, summer, or fall, and the cost of the work much more. The cost of the work under the contract with the Holbrook Corporation was increased to the amount of $98,305.05 beyond the contract price, which increase was due to the excess cost of labor and materials and the expense of maintenance of plant and equipment, and the plaintiff has been obliged to pay to the Holbrook Corporation this excess cost for the construction of the bridge.

On October 19, 1915, the Empire Company as principal, and the defendant as surety, executed and delivered to the plaintiff a bond in the sum of $109,264.70, conditioned that the Empire Company should in all respects comply with the terms of the contract with plaintiff and save it harmless from all damages or loss to which the plaintiff might be subjected by reason of any default by the Empire Company in the execution of its contract.

The complaint is in two counts; the first alleging delay on the part of the Empire Company in completing the north half, and the second alleging delay in completing the south half. No claim is made that there was evidence tending to support the second count. Further, no evidence was offered in support of the allegations of paragraphs 11 and 12 of the first count alleging delay in furnishing trunnion posts. The case as tried was confined to the claim under the first count that the Empire Company failed to complete the north half of the movable span within 90 days after receiving notice that the piers were ready for it. It is further alleged in the first count, and these allegations are denied by defendant, that by reason of this delay of the Empire Company the plaintiff could not fulfill its contract with the Holbrook Corporation and was delayed six months before the north half of the bridge was opened for traffic; that in consequence of this default of the Empire Company and the delay to the Holbrook Corporation resulting therefrom, the cost of the work to the Holbrook Corporation was increased the $98,305.05 beyond the contract price, which increase was due to the excess cost of labor and materials, and the expense of maintenance of plant and equipment, and that by reason of the default of the Empire Company the plaintiff was obliged to pay the excess cost of $98,305.05 for the construction of the bridge.

The Holbrook Corporation was to complete the substructure work prior to October 31, 1916. It did not do this until December 1, 1916. There was no evidence offered that Empire Company was responsible for this delay. The only default for which the Empire Company could be held responsible was for the failure to complete the north half of the movable span within 90 days from december 1, 1916. It was essential to plaintiff's case that the payment by the city to the Holbrook Corporation be connected with the Empire Company's default in such way as to make the Empire Company, and therefore its surety, the defendant responsible. Appreciating this, plaintiff's counsel offered in evidence, as prima facie proof of this, a judgment obtained by the Holbrook Corporation against plaintiff. This was excluded. There then appears in the evidence offered proof of the fact of the delay and of the compulsory payment of this sum by the plaintiff to the Holbrook Corporation. There was also evidence offered by the plaintiff that the fact that the Holbrook Corporation had to do this work after August made it cost more because required to be done slower and in the inclement season. There the evidence stops. It does not tend to connect the delay caused by the Empire Company with the increased cost to the Holbrook Corporation, or the payment made by the plaintiff to it. That connection is clearly alleged in paragraphs 14--18 of the complaint. Without allegations showing such connection, the complaint would have been demurrable. It was indispensable to plaintiff's cause of action as stated in the first count that it make out a prima facie case, that the Empire Company by its delay caused the city of Bridgeport to be under obligation to the Holbrook...