Gary Excavating Co. v. Town of North Haven

• Decision Date: 17 February 1971
• Citation: 160 Conn. 411,279 A.2d 543
• Court: Connecticut Supreme Court
• Parties: GARY EXCAVATING COMPANY v. TOWN OF NORTH HAVEN et al.

Page 543

279 A.2d 543

160 Conn. 411

GARY EXCAVATING COMPANY v. TOWN OF NORTH HAVEN et al.

Supreme Court of Connecticut.

Feb. 17, 1971.

John W. Barnett, New Haven, with whom was Basil R. Duncan, New Haven, for appellants (defendants).

Howard F. Zoarski, New Haven, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

HOUSE, Associate Justice.

The plaintiff contracted with the defendant town and its sewer commission, hereinafter referred to as the defendants, for the construction of sanitary sewer laterals. The contract contained a provision for the arbitration of any disputed claims which should arise in the course of the performance of the work. A controversy arose from a claim by the plaintiff that it was required to incur unanticipated additional expense in performing the work due to subsoil conditions which, the plaintiff claimed, different from those contained in the information submitted to it for the purpose of preparing its bid. As provided by the contract, the plaintiff submitted its 'Statement of Issues in Dispute,' ¹ arbitrators were appointed and they conducted hearings. Following the hearings the arbitrators made an award. They found that the plaintiff had established that discrepancies existed between the information furnished by the defendants concerning subsoil conditions and the conditions actually encountered, that as a result the plaintiff had incurred a substantial additional expense beyond that anticipated from the information furnished by the defendants upon which its bid was based, that this additional expense due to the conditions encountered amounted to $150,000, and, accordingly, awarded that sum to the plaintiff as additional compensation over and above the compensation provided by the terms of the contract.

The plaintiff, as permitted by General Statutes §§ 52-418 and 52-419, filed in the Superior Court an application to vacate 'and/or' correct the arbitration award. The court concluded 'that said award is ambiguous, indefinite and improperly executed in that it does not constitute a mutual, final and definite award upon the subject matter submitted and as a result is void', and judgment was rendered vacating the award. From that judgment the defendants have appealed.

The court heard no evidence and properly made no finding. The record on appeal consists only of the application to vacate the award, the submission, the defendants' statement of issues and their position submitted to the arbitrators, the award, the court's memorandum of decision, the judgment and the assignment of errors. In such circumstances we may turn to the memorandum of decision to learn the basis for the court's decision. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 553, 235 A.2d 643; National Broadcasting Co. v. Rose, 153 Conn. 219, 226, 215 A.2d 123. We find no aid here, however, for the memorandum of decision sheds no light on the reasons for the conclusion of the court that the award was ambiguous, indefinite and improperly executed.

In these circumstances we can only examine the submission and the award to determine whether the award is in conformity with the submission so as to constitute a mutual, final and definite award upon the subject matter submitted. 'It is the established policy of the courts to regard awards with liberality. Every reasonable presumption and intendment will be made in favor of the award and of the arbitrators'...