Goldfarb v. Cohen

• Decision Date: 15 December 1917
• Citation: 102 A. 649,92 Conn. 277
• Court: Connecticut Supreme Court
• Parties: GOLDFARB et al. v. COHEN.

102 A. 649

92 Conn. 277

GOLDFARB et al.

v. COHEN.

Supreme Court of Errors of Connecticut.

Dec. 15, 1917.

Appeal from Superior Court, New Haven County; Edwin B. Gager and Joseph P. Tuttle, Judges.

Action by Israel W. Goldfarb and another against Jacob Cohen for work done and materials furnished in the construction of three houses. Verdict and judgment for plaintiffs, and defendant appeals. Affirmed.

The testimony of Goldfarb as to the conversation he had with defendant at the time the written guaranty was delivered was, in substance, that the witness' partner spoke to defendant about the matter, and that defendant said the proposition was all right and he was in it and would see it through and was good for it, and said he was interested in the property and as soon as the property would be finished he would obtain a mortgage and see that everybody was paid off, and that he was furnishing the lumber and materials and would not furnish the lumber if he did not know there would be money enough. The objection was that whatever negotiations were had were merged in a written document.

The plaintiffs entered into a contract with one Ruderman to furnish materials and perform work as electrical contractors on three houses then under construction, and in so doing they relied on a writing signed by the defendant in the following form:

"This is to certify that I, Jacob Cohen, of New Haven Lumber Company, will be responsible to Goldfarb and Schultz for the amount of twelve hundred and seventy-five dollars ($1,275) contract price on the three houses which is being built on Lake Place for Samuel Ruderman in the event of there not being enough money fifty days (50) after the entire completion of the three houses. [Signed] Jacob Cohen."

Plaintiffs had put about $900 worth of labor and materials into the houses when they were partly burned. After the fire a foreclosure suit was brought by the first mortgagee to which both the plaintiffs and the defendant were parties, as lienors, and the premises were redeemed by a subsequent incumbrancer who took title and possession and employed other electrical contractors. The plaintiffs have never been paid, and by reason of the failure of Ruderman and of the defendant to redeem the premises have been prevented from completing their contract, although able and willing to do so. The original complaint was based wholly on the writing above quoted, and a demurrer to the complaint was sustained on the ground that it did not allege the completion of the houses, or that there was not money enough 50 days thereafter. An amended complaint was then filed charging the defendant with liability not only on the written instrument, but also as the real owner of the houses and the undisclosed principal in the plaintiffs' contract with Ruderman. A demurrer to the amended complaint based on substantially the same grounds as before was overruled. The defendant answered, admitting the execution of the writing, the partial destruction of the houses by fire and the failure to complete the houses or redeem the premises, but denying all the other allegations of the complaint.

The jury returned a verdict for the plaintiffs which, under the instructions of the court, may have been based either on a finding that the defendant was liable as owner of the houses and as undisclosed principal in the plaintiffs' contract with Ruderman, or on a finding that the defendant was liable only as a surety or guarantor. The defendant appeals from the refusal of the court to set aside the verdict, and for alleged errors in permitting the plaintiffs to file the amended complaint, in overruling the demurrer to the amended complaint, in omitting and excluding evidence, and in charging and refusing to charge the jury.

Benjamin Slade, of New Haven, for appellant.

Charles S. Hamilton, of New Haven, for appellees.

BEACH, J. (after stating the facts as above). The court did not err in granting the plaintiffs' motion for leave to file the amended complaint. In fact no motion was necessary, for the amended complaint was filed within 20 days after the demurrer to the original complaint had been sustained. Practice Book, § 155 (d), p. 247. No attempt was made to separate and strike out the cause of action based on the written instrument, which had already been successfully demurred to. The demurrer to the amended complaint was based substantially on the ground that the written instrument, which for the sake of brevity may somewhat inaccurately be called a guaranty, expressed the entire obligation of the defendant whether as owner or as guarantor, and that it created no obligation on the part of the defendant until the expiration of 50 days after the entire completion of the houses. The demurrer was properly overruled, because although addressed to the whole complaint, it does not reach the cause of action based on the defendant's ownership of the premises. As owner and as the undisclosed principal of Ruderman, the defendant was liable on the plaintiffs' contract for electrical work and supplies, and also on the implied obligations arising out of that contract irrespective of the written guaranty.

We also hold that the amended complaint states a good cause of action upon the guaranty, notwithstanding the lack of any sufficient allegation that the houses had been completed. So far as the guaranty is concerned the complaint rests the defendant's liability, not upon the completion of the houses, but upon the allegation that without the plaintiffs' fault and solely because Ruderman abandoned the completion of the houses, the plaintiffs were prevented from...