Haaser v. A. C. Lehmann Co.

• Court: Connecticut Supreme Court
• Writing for the Court: JENNINGS, Judge.
• Citation: Haaser v. A. C. Lehmann Co., 130 Conn. 219, 33 A.2d 135 (Conn. 1943)
• Decision Date: 29 June 1943
• Parties: HAASER et al. v. A. C. LEHMANN CO.

130 Conn. 219

33 A.2d 135

HAASER et al.

v.A. C. LEHMANN CO.

Supreme Court of Errors of Connecticut.

June 29, 1943.

Appeal from Court of Common Pleas, Hartford County; Bordon, Judge.

Action by William E. Haaser and another against the A. C. Lehmann Company to recover damages for breach of a building contract wherein a counterclaim was filed, brought to the Court of Common Pleas and tried to the court. Judgment for plaintiffs and appeal by defendant.

No error.

David A. Wilson and Ernest T. Racicot, both of Hartford, for appellant.

Richard Levin, of Hartford, for appellees.

Before MALTBIE, C. J. and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The plaintiffs brought suit for damages for breach of a roofing contract. The court found that the plaintiffs and defendant entered into a contract which provided that the defendant should furnish and put in place a flat roof on a building being constructed by the plaintiffs for the Bergren Dairy in East Hartford. The work was substantially completed by the defendant but was so poorly done and so defective that it was of no value to the plaintiffs. There was also trouble over the employment of nonunion labor. The plaintiffs notified the defendant to get off the job and had a new roof installed by another contractor at a cost which exceeded the contract price by $478.62, for which amount judgment was entered for the plaintiffs. They brought suit about a month after the date of the notice.

The terms of the notice given by the plaintiffs to the defendant and admitted in its reply should be added to this finding as requested by the defendant, and this is the only change required. The notice read as follows: ‘We hereby rescind our tentative contract with you on the roofing for the new Bergren addition due to the fact you represented yourselves as Union Contractors, and to date have been unable to produce any evidence that you are affiliated with the Union, but we can not longer delay this job.’ In connection with this notice the court found: ‘Although the plaintiffs used the word ‘rescind’ in the notice given to the defendant, they intended thereby to notify the defendant it had breached its contract for failing to use union labor on the job.' The defendant asks that this finding be stricken out as having no basis in the evidence. It claims that the plaintiffs, having elected to rescind the contract, cannot bring suit thereon. The pleadings do not properly raise the claim of rescission, since a defense to the complaint cannot be supplied by the affirmative allegations of a cross-complaint. Jennings Co., Inc., v. DiGenova, 107 Conn. 491, 495, 141 A. 866. The parties have, however, treated the issue as in the case and we shall follow them in this regard. Conn.App.Proc., § 22.

‘He who elects to rescind a contract can claim nothing under it.’ Jones v. Brinsmade, 183 N.Y. 258, 262, 76 N.E. 22, 24, 3 L.R.A.,N.S., 192, 111 Am.St.Rep. 746, 5 Ann.Cas. 378; Valente v. Weinberg, 80 Conn. 134, 135, 67 A. 369, 13 L.R.A.,N.S., 448; Janulewycz v. Quagliano, 88 Conn. 60, 64, 89 A. 897; 3 Black, Rescission, 2d Ed., § 704; Restatement, 2 Contracts, § 410, Comment b, illustration 2; 12 Am.Jur. 1019, 1038; 13 C.J. 623, § 684; 17 C.J.S., Contracts, p. 925, § 441. A definite election to rescind a contract is final and operates as a waiver of the right to sue in damages. 5 Page Contracts, § 3030. The plaintiffs do not seriously dispute these general principles but claim that the use of the word ‘rescind’ is not controlling and that all of the circumstances surrounding the parties must be examined to determine their intention.

In Finlay v. Swirsky, 98 Conn. 666, 120 A. 561, the plaintiffs brought suit for breach of contract to buy a large amount of sugar, and one of the defenses was that the use of the word ‘rescind’ in their notice to the defendants so effectually put an end to the contract that it could not thereafter be the basis of any action whatever. Of this contention, this court said (98 Conn....