Greenwich Contracting Co. v. Bonwit Const. Co.

• Decision Date: 06 February 1968
• Court: Connecticut Supreme Court
• Parties: GREENWICH CONTRACTING COMPANY, Inc. v. BONWIT CONSTRUCTION COMPANY, Inc.

Page 519

239 A.2d 519

156 Conn. 123

GREENWICH CONTRACTING COMPANY, Inc. v. BONWIT CONSTRUCTION COMPANY, Inc.

Supreme Court of Connecticut.

Feb. 6, 1968.

Julius B. Kuriansky, Stamford, for appellant (defendant).

William T. Cahill, Greenwich, with whom, on the brief, was Michael M. Calhoun, Greenwich, for appellee (plaintiff).

Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

COTTER, Justice.

The plaintiff, a subcontractor, brought suit to recover a balance alleged to be due for materials furnished and for work performed in futherance of a contract it had with the defendant, a general contractor, for the excavation and site development required in connection with the construction of the Dundee Elementary School in the town of Greenwich. The defendant filed a counterclaim alleging that by mistake a paragraph was omitted from the subcontract, asking for reformation of the subcontract to include the paragraph in question, in claiming damages for reimbursement of the expense incurred by it in satisfying the provisions of the paragraph allegedly omitted. Judgment was rendered for the plaintiff on the complaint and counterclaim, and the defendant has appealed.

The facts as found by the court, with such corrections as are warranted, are as follows: The defendant entered into a contract, dated May 9, 1961, with the board of education of the town of Greenwich for the construction of the Dundee Elementary School. The defendant engaged several subcontractors to perform various work under the general contract. The plaintiff, one of the subcontractors engaged by the defendant, agreed under a contract dated May 15, 1961, to perform, inter alia, the site work outlined in § 31 of the specifications of the general contract, excluding, however, subsections 21 through 31 of § 31, which contained thirty-seven subsections numbered 1 through 37. The contract price was $114,230, with change orders bringing the total contract price to $118,718.07 and with further modifications bringing the adjusted contract price to $110,125.11. The parties stipulated to an unpaid balance due the plaintiff of $18,885.94.

The contract between the parties, prepared and dictated by Martin W. Witte, the defendant's vice-president, was typed under his supervision in the defendant's office and was signed by Witte and Frank E. Mazza, the plaintiff's president.

The basic issue raised by the counterclaim is whether the defendant is entitled to have the contract between the parties reformed to include subsection 26 of § 31 of the specifications, entitled 'Finished Grading.' Rider A, attached to and made a part of the contract, provided that subsections 21 to 31, inclusive, of § 31 of the specifications were to be omitted from the contract. The defendant claims that the omission from their contract of subsection 26 of § 31 of the specifications was inadvertent and resulted from a scrivener's mistake. In furtherance of its prayers for reformation of the contract and damages, the defendant claims that subsection 26 'was omitted either by mutual mistake or by unilateral mistake coupled with fraud or inequitable conduct on the part of the plaintiff, so that the contract as signed does not express the true intent of the parties and should have been reformed, for the reason that the indisputable physical facts offered by the defendant in the form of documentary evidence demonstrated that the plaintiff's testimony was untrue, resulting in the plaintiff being unjustly enriched at the expense of the defendant.'

A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other. Moffett, Hodgkins & Clarke Co. v. City of Rochester, 178 U.S. 373, 385, 20 S.Ct. 957, 44 L.Ed. 1108; Patalano v. Chabot, 139 Conn. 356, 359, 94 A.2d 15; Home Owners' Loan Corporation v. Stevens, 120 Conn. 6, 9, 179 A. 330; 27 Am.Jur.2d 555, Equity, § 33; 45 Am.Jur., Reformation of Instruments, 584 § 2, 621 § 62; 76 C.J.S. Reformation of Instruments § 30, p. 375.

A court in the exercise of its power to reform a contract must act with the utmost caution and can only grant the relief requested if the prayer for reformation is supported by convincing evidence. Palmer v. Hartford Fire Ins. Co., 54 Conn. 488, 500, 501, 9 A. 248. In the absence of fraud, it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear so as to leave no room for doubt. Bishop v. Clay Fire & Marine Ins. Co., 49 Conn. 167, 172. If the right to reformation is grounded solely on mistake, it is required that the mistake be mutual, and to prevail in such a case, it must appear that the writing, as reformed, will express what was understood and agreed to by both parties. Hoffman v. Fidelity & Casualty Co. of New York, 125 Conn. 440, 444, 6 A.2d 357; Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 548, 72 A.2d 482; 76 C.J.S. Reformation of Instruments §§ 25, 28.

The trial court concluded that the mistake was not mutual and that it was a unilateral mistake of the defendant not coupled with fraud or inequitable conduct on the part of the plaintiff. It refused to reform the written contract, concluding that the reformation as requested by the defendant, if granted, would not express the understanding and agreement of the parties.

In seeking to reverse the judgment of the court, the main thrust of the defendant's argument, although it concedes the difficulty inherent in an attempt to 'overthrow a decision of a trial judge on an issue of fact,' is that 'the indisputable physical facts are so compelling' it must be found that the trial court reached an erroneous conclusion and that the 'cumulative effect of the documentary evidence is so overwhelming * * * that the conclusion is inescapable that the finished grading was part of the plaintiff's obligation under the contract.'

The defendant has assigned error in the court's refusal to add forty-five paragraphs to the finding, but it cannot prevail on this issue since the additions it requests involve facts which are immaterial or are neither admitted nor undisputed. Practice Book § 628(a). The assignments that certain paragraphs were found without evidence lack merit. The remaining group of assignments attacks certain conclusions in the finding as unsupported by the subordinate facts.

The evidence upon which both parties rely, which affects the basic issues in the case...