H. B. Toms Tree Surgery, Inc. v. Brant

• Decision Date: 15 June 1982
• Citation: 187 Conn. 343,446 A.2d 1
• Court: Connecticut Supreme Court
• Parties: H. B. TOMS TREE SURGERY, INC. v. Peter M. BRANT. James FANNING v. Peter M. BRANT.

Page 1

446 A.2d 1

187 Conn. 343

H. B. TOMS TREE SURGERY, INC. v. Peter M. BRANT.

James FANNING v. Peter M. BRANT.

Supreme Court of Connecticut.

Argued May 12, 1982.

Decided June 15, 1982.

Miles F. McDonald, Jr., Greenwich, for appellant (defendant in each case).

George W. Scott, Jr., Greenwich, for appellees (plaintiff in each case).

Before SPEZIALE, C. J., and PETERS, PARSKEY, ARMENTANO and SHEA, JJ.

PER CURIAM.

These appeals arise out of the plaintiffs' performance of extensive landscaping services at the request of the defendant Peter M. Brant. The plaintiff H. B. Toms Tree Surgery, Inc., a landscape contractor, brought an action in express and implied contract to recover for the value of labor, material and machinery used to landscape the defendant's property off Taconic Road in Greenwich. The plaintiff James Fanning, a landscape architect, brought a separate action to recover fees for services rendered in connection with various improvements on the defendant's property; in part he claimed a fee to be calculated as a percentage of the Toms recovery. The defendant denied liability in both causes of action and filed a counterclaim as to each. After a consolidated trial, judgment was rendered for each plaintiff on the complaint and the counterclaim, and the defendant filed timely appeals. Since the defendant's appeal in the Fanning case is limited to that part of the Fanning fee that is attributable to the Toms work, the cases were combined for appeal in this court.

The trial court's memoranda of decision contain extensive findings describing in detail the relationship between the parties and the services rendered by the plaintiffs. These findings of fact have not been questioned on this appeal. For present purposes, we need note only the following: The plaintiffs Toms and Fanning performed substantial landscaping services at the defendant's request. Their work was properly done and the defendant expected to pay them for it. The pattern of dealing between the parties was essentially informal. Despite the occasional solicitation and submission of written estimates for the work to be done by Toms, its workmen on the job site were continuously directed to do extra work, without formal quotation, with the knowledge and the consent of the defendant. For the work done in the fall and winter of 1973, the defendant paid, without protest, bills substantially in excess of Toms' written estimate. For the work presently at issue, the defendant paid, in the summer of 1974, amounts totalling $36,000 when estimates had been received for no more than $10,000. The volume of extra work made it difficult, according to Toms, to keep specific track of what work was extra, and Toms so informed Fanning, who indicated that the defendant would pay for all the work.

In light of all these circumstances, the trial court found that the plaintiff Toms, though failing to establish any express contract, could recover on the second count of his complaint alleging an implied contract. To calculate the value of the plaintiff Toms' work, the court determined that the only feasible criterion was to compensate Toms "on a time basis for labor and equipment use and operation and unit charges for materials furnished." Applying this test, the court awarded Toms the sum of $53,410.92 together with interest and costs.

The defendant has pursued on this appeal three issues, one procedural and two substantive, that are all variations on one central theme. Because the defendant is of the view that there were binding express contracts between himself and Toms which required any additional work to be separately valued and itemized as extras, the defendant finds fault with the trial court's Toms memorandum of decision, which makes no express finding about such contracts, and with the substantive basis for its award of damages and of interest.

We will deal first with the defendant's claim that the trial court was obligated, in stating the factual basis for its decision, to consider explicitly the express contracts now claimed by the defendant to be controlling. There are several answers to this claim. The record is unclear whether this claim was expressly called to the attention of the trial court; although there was testimony at trial about the solicitation of estimates from the plaintiff Toms, the defendant never filed a pleading relying on express...