Fagerholm v. Nielson

• Decision Date: 16 April 1919
• Citation: 106 A. 333,93 Conn. 380
• Court: Connecticut Supreme Court
• Parties: FAGERHOLM v. NIELSON.

106 A. 333

93 Conn. 380

FAGERHOLM v. NIELSON.

Supreme Court of Errors of Connecticut.

April 16, 1919

Appeal from Court of Common Pleas, Hartford County; Daniel A Markham, Judge.

Action by Carl Fagerholm against John P. Nielson, under the common counts and bill of particulars, to recover balance on a contract for painting, papering, and varnishing, and for extras. From denial of defendant's motion to set aside a verdict for plaintiff, and for errors of the court in charging, refusing to charge, and admitting evidence defendant appeals. No error.

The plaintiff and the defendant entered into a contract under which the plaintiff was to do the painting, papering, and varnishing of two tenement blocks being built by the defendant, for the sum of $675 each. The plaintiff entered upon the work and before he had finally completed it he ceased work. The defendant had then paid the plaintiff $1,020 on account leaving $330 on the unpaid balance under the contract. The plaintiff also did work, and furnished materials for which he claimed payment as for extras.

The defendant, besides the general denial, filed a so-called second defense on the grounds of abandonment before completion and defective work, a third defense of payment, and also a counterclaim for cost of completion and loss of rents by delay in completion. The reply was a denial. The case was tried to the jury. The real difference that developed upon the trial was with reference to abandonment by the plaintiff, and as to whether floors and closets were to be painted, and whether the work done conformed to the contract. The plaintiff offered evidence to prove, and claimed to have proved, that floors and closets were not in the contract; that when he ceased work he had substantially completed the job, only about a week's work of one man remaining to be done; that the work was done between November, 1916, and April, 1917; that the plaster was fresh, wet, and much of it frozen on account of insufficient heat, and unfit for papering, because paper would peel off when the plaster thawed; that the woodwork was unfit for varnishing by reason of dampness; that he so notified the defendant, and that it was physically impossible to go on and do a good job with the walls and woodwork in the condition they then were; but that the defendant was in a hurry to complete the houses, and directed the plaintiff to go forward with all possible speed to do the papering and varnishing, and that the defendant directed the plaintiff to do over again any work required to be done as a consequence of papering and varnishing when the plaster and woodwork were unfit to be papered and varnished by reason of dampness, and that the defendant promised the plaintiff to pay him for such work as extra; that he did the entire job according to his contract, except the week's work of one man, and that in consequence of the condition of the walls and woodwork he had to repaper and revarnish at an expense of $57.20 on one house and $115.60 on the other; that on April 21, 1917, the defendant without cause or excuse discharged the plaintiff from the job, and put other men on to complete the job; that it was complete except a week's work of one man at $4.80 per day; that there was substantial performance, and that his work was done in good workmanlike manner; that the extra work was due to putting paper and varnish on wet and frozen walls by the positive orders of the defendant, and not from any defect of material or workmanship. The defendant claimed to have proved that the work done by the plaintiff was unworkmanlike and defective; that he never authorized any work to be done as extras; that he did not discharge the plaintiff or prevent him from completing the job; that the walls were fit for papering; that frozen walls could be papered; that the job was not substantially completed; that all the closets and floors were fit for painting, but were left unpainted; that he paid $537 to have the work completed, and by reason of delays of the plaintiff he lost tenants.

The jury found the issues for the plaintiff, and that he recover $479. A motion to set aside the verdict was denied, and the defendant appealed from the denial of this motion; also for refusal to charge as requested; for error in the charge as given, and for errors in rulings upon evidence.

William H. Fogarty, of Hartford, for appellant.

James B. Henry, of Hartford, for appellee.

GAGER J.

The first two of the reasons of appeal are based on the refusal of the court to charge as requested by the defendant. The action is for a balance due upon a building contract and for extras, and the plaintiff's right to recover upon the contract depends upon substantial performance, and the right upon the extras depends upon whether they were ordered.

The first of the defendant's requests relates merely to the essentials of a discharge of the contract by agreement, and treats of termination by agreement and substitution of a new contract. The record does not raise any such questions, and there was no error in not charging as requested. But this request to charge also incorporates a reference to performance. " The jury must find for the defendant in case said defendant proves that the plaintiff failed to perform his contract according to its terms, unless such failure was caused by any of the three discharges enumerated above," referring to discharge by agreement, by impossibility of performance, and by breach. This standing by itself is not an accurate statement with reference to building contracts. The necessities of such cases have led to a modification of the statement to prevent injustice, as set out in Pinches v. Swedish Lutheran Church, 55 Conn. 187, 10 A. 264.

The second claimed error relates to impossibility of performance and recovery on quantum meruit. As to the first point the record does not show that impossibility of performance was claimed. The contract did not provide for its completion at any definite time; hence it was to be completed in a reasonable time, and the real question was as to the defendant's imperative directions to the plaintiff to proceed before the walls were fit to be papered, and the woodwork varnished, on his definite promise to pay for work that might have to be done over in consequence. No claim of the plaintiff is based on impossibility of complying with the terms of the contract. The claim was that, owing to the condition of the walls, compliance with the hurry up order of the defendant necessarily resulted in the peeling off of some paper and the consequent repapering. As to quantum meruit the entire request is based upon the theory that the plaintiff's action is upon the technical quantum meruit, and quite overlooks the real meaning of the Pinches Case, which recognizes the action as still on the contract, though deductions might be made from the contract price when there has not been entire conformity with the contract, provided the deviation was not willful. Daly & Sons v. New Haven Hotel Co., 91 Conn. 280, 99 A. 853; Jones & Hotchkiss Co. v. Davenport, 74 Conn. 420, 50 A. 1028; Chariott v. McMullen, 84 Conn. 702, 81 A. 65. The contract is the basis of recovery. The request is too long to be quoted. It is sufficient to say that it is involved,...