Greenwich Contracting Co. v. Bonwit Const. Co.

• Court: Supreme Court of Connecticut
• Writing for the Court: COTTER
• Citation: 156 Conn. 123,239 A.2d 519
• Parties: GREENWICH CONTRACTING COMPANY, Inc. v. BONWIT CONSTRUCTION COMPANY, Inc.
• Decision Date: 06 February 1968

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.

[156 Conn. 124]

Page 520

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 [156 Conn. 123] ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

[156 Conn. 124] 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 [156 Conn. 125] 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

Page 521

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 [156 Conn. 126] 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...