DuBose v. Carabetta

• Decision Date: 03 June 1971
• Citation: 161 Conn. 254,287 A.2d 357
• Parties: Charles DuBOSE v. Joseph F. CARABETTA et al.
• Court: Connecticut Supreme Court

Page 357

287 A.2d 357

161 Conn. 254

Charles DuBOSE v. Joseph F. CARABETTA et al.

Supreme Court of Connecticut.

June 3, 1971.

William J. Egan, New Haven, with whom, on the brief, was S. Robert Jelley, New Haven, for appellants (defendants).

Paul W. Orth, Hartford, for appellee (plaintiff).

Before HOUSE, THIM, RYAN, SHAPIRO and LOISELLE, ^* JJ.

RYAN, Associate Justice.

The plaintiff, an architect licensed to practice architecture in Connecticut brought this action to recover a fee alleged to be due under a contract wherein the plaintiff agreed to provide architectural services for the construction of an apartment building on land situated in the city of Meriden. The defendants are Joseph F. Carabetta, Meadow Haven, Inc., Carabetta Enterprises, Inc., and Victoria Towers, Inc., all of Meriden. Joseph F. Carabetta, the individual defendant, is a principal and officer of each of the three defendant corporations and each defendant is engaged in the building business. During the course of the trial, the parties stipulated that any judgment rendered against any one defendant should be against all defendants. The referee rendered judgment for the plaintiff to recover of the defendants the sum of $57,378.65, together with interest in the sum of $9324, making a total of $66,702.65. The defendants have appealed to this court.

The defendants assign error in the finding of subordinate facts. They concede that there was evidence to support these findings but urge that some of them were made without the benefit of evidence which the defendants sought to introduce, which was excluded by the referee. The ruling in question will be discussed later in this opinion. The court found the following facts. In April, 1966, the defendants contacted the plaintiff with a view toward commissioning him to design an apartment building which the defendants were planning to erect in Meriden. On or about May 4, 1966, the plaintiff contracted with the defendants to design an apartment building which would meet the limitations or qualifications of the Federal Housing Administration, hereinafter referred to as F.H.A. The defendants agreed to pay the plaintiff a fee for these services which would not exceed the maximum permitted by the F.H.A. The plaintiff fully performed his contract with the defendants and is entitled to compensation as controlled by the F.H.A. computation of December 28, 1966, amounting to $56,460, plus $918.65 for expenses, making a total of $57,378.65. On or about December 12, 1966, the plaintiff submitted what he regarded as substantially final plans and specifications to the defendants, but he made certain modifications thereafter. The final drawings and specifications were reviewed by the F.H.A. and certain small modifications were made. The plaintiff's plans called for a building made of reinforced concrete. The plans were excellent and would have produced a fine building. The plaintiff gave no guarantee of the cost per square foot of the building. After the plans were delivered, the defendants sought to reduce the cost of the building without conferring with the plaintiff. The defendants, without the knowledge of the plaintiff, engaged Thurston Klayton, an engineer, who was authorized by the defendants to change the plaintiff's plans to steel construction instead of concrete. The plaintiff could have made such changes if requested to do so but the defendants did not ask this of him. After Klayton changed the plaintiff's plans by substituting steel for concrete, the defendant and Klayton met with the plaintiff and advised him of what had happened. The plaintiff was willing to cooperate and change the plans on the condition that he be guaranteed compensation for the plans he had already drawn and delivered, but the defendants were not willing to pay the plaintiff for the services he had rendered. The plans drawn by Klayton were an exact copy of the plaintiff's plans. The only changes made by Klayton were those necessitated by the change from concrete to steel. In all other respects the plans were identical. Engaging Klayton without first consulting the plaintiff was an improper act by the defendants and a professionally unethical act by Klayton. After the plaintiff was informed that Klayton had redesigned the structure in steel rather than reinforced concrete, the plaintiff was willing to revise his plans at no additional charge to go along with the steel design. It is not customary for an architect to guarantee the cost of the building for which he has drawn plans. The defendants engaged Klayton without the knowledge of the plaintiff and did not discuss with the plaintiff the advisability of changing from concrete to steel. The plaintiff was not informed of the proposed change until after Klayton was engaged and had already redrafted the plaintiff's plans by substituting steel for concrete.

On these subordinate facts the referee concluded that the plaintiff contracted with the defendants to design an apartment building which would meet the limitations or qualifications of the F.H.A.; that the defendants agreed to pay the plaintiff a fee for these services which would not exceed the maximum permitted by the F.H.A.; that the plaintiff fully performed his contract with the defendants and is entitled to compensation; and that the amount due him under the contract is controlled by the F.H.A. computation of December 28, 1966, amounting to $56,460 plus $918.65 for expenses, or a total of $57,378.65.

The defendants assign error in a ruling by the referee excluding certain evidence. The case was tried on six days over a period of three months from September 15, 1969, to December 19, 1969. On the second day of the trial the plaintiff testified during cross-examination that he felt sure that the wind and floor loads in his plans complied with the applicable F.H.A. code because he had confidence in his structural engineer who prepared the calculations and computations. Later on that day during the cross-examination of Peter Verkon, the chief architect in the Hartford office of the F.H.A., a witness called by the plaintiff, the defendants offered in evidence the minimum standards of the F.H.A. with respect to wind and floor loads applicable to apartment buildings. The plaintiff objected to the evidence on the ground that up to that point the defendants had given no indication that the plans were defective. The plaintiff called the referee's attention to the fact that in response to the plaintiff's motion for disclosure the defendants' compliance therewith on December 10, 1968, had specified three objections to the plaintiff's plans-' incomplete, unsuitable, and late'-and had given no indication of any claim that the plans were defective. In so doing the plaintiff acted in accordance with the procedure suggested in Hirsch v. Thrall, 148 Conn. 202, 207, 169 A.2d 271. The defendants claimed that the exhibit would be a foundation to show that the plaintiff's plans were not suitable in connection with floor and wind loads. The referee referred to the pleadings which showed a general denial of the plaintiff's performance of the contract and the absence of any special defense. He then ruled that any defect, impropriety or unsuitability in the work must be specially pleaded and that the evidence was inadmissible. On the third day of the trial the defendants sought permission of the referee to amend their answer to add the following special defense: 'The architectural services rendered by the plaintiff did not comply with the basic design criteria for live load and wind load according to FHA standards. Said design criteria is (sic) set forth in plaintiff's Exhibit C.' Exhibit C consists of the plans drawn by the plaintiff. The referee indicated that he was not inclined to permit the amendment and suggested that the defendants proceed without the amendment up to a point where they needed it and then offer it again. On the sixth and last day of the trial the amendment was again offered, at which time the plaintiff's objection to it was sustained and the defendants duly excepted to the ruling.

The defendants claim that the architectural services rendered by the plaintiff did not comply with the basic design criteria for live and wind loads according to the F.H.A. standards, and that such evidence was admissible under a general denial. Practice Book § 120 provides: 'No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res adjudicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.' The defendants urge that nonperformance is not specifically listed in this section and is, therefore, not embraced within the rule. The inherent difficulty in drawing the line between what can be shown under a general denial and what must be specially pleaded is recognized by 1 Stephenson, Conn.Civ.Proc. (2d Ed.) § 126(g). 'The rules specify certain matters which must be specially pleaded and the annotations provide further aid (Practice Book § 120 and annotation). The pleader must be as familiar with the scope of denials of today as his grandfather was with the scope of the 'general issue' at common law. The problem is not one peculiar to Connecticut procedure but exists even under procedures which have deliberately reduced the...