Healy v. Fallon

• Citation: 37 A. 495,69 Conn. 228
• Court: Supreme Court of Connecticut
• Decision Date: 25 May 1897
• Parties: HEALY v. FALLON et al.

37 A. 495

69 Conn. 228

HEALY

v. FALLON et al.

Supreme Court of Errors of Connecticut.

May 25, 1897.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Suit by William J. Healy against Hugh Fallon and others to foreclose a mechanic's lien. There was judgment for plaintiff on facts found by the court, and defendants appeal. No error.

Charles H. Fowler, for appellants.

James H. Webb and James E. Wheeler, for appellee.

TORRANCE, J. This is a complaint brought to foreclose a mechanic's lien. It alleges, in substance, that the plaintiff furnished materials for, and rendered services in the construction of, a dwelling house on land of the defendants under an agreement with them by which the plaintiff was to build said house complete, and was to be paid, on its completion, the sum of $4,325; that said house was completed on the 26th day of November, 1894; that the defendants had paid only $2,800 on account of the sum agreed to be paid; and that the plaintiff, on the 7th of December, 1894, had filed a certificate of lien as required by law, a copy of which was annexed to the complaint. The relief prayed for was (1) a foreclosure of the lien and (2) $1,800 damages. To this complaint the defendants filed an answer, substantially admitting all the allegations of the complaint, except that as to the completion of the house, as to which allegation they stated that they had "not sufficient information to form a belief." They also filed, at the same time, the following "special defense": "(1) The defendants say that they entered into a certain written agreement with William J. Healy, whereby the said William J. Healy was to build for them a dwelling bouse in a good and workmanlike manner, and upon its completion they were to pay the amount as set up in said agreement in writing. (2) The said William J. Healy has never completed said dwelling house. (3) That said dwelling was not built in manner and form as agreed upon. (4) That they are not indebted to the said William J. Healy in manner and form as alleged." To this special defense the plaintiff replied by denying paragraphs 2 and 3, and alleging that "the defendants accepted said house, upon its completion, without complaint as to the existence of defects therein, and have ever since occupied the same." The defendants rejoined by denying so much of the reply as alleged that they "accepted the house, upon its completion, without complaint as to the existence of defects therein." The defendants also filed in the case a bill of particulars, setting forth in detail the matters in respect to which the plaintiff had failed to build and complete the house as agreed. Upon these pleadings the case was tried, and the court upon the facts as found upon the record rendered judgment for the plaintiff.

The substance of the finding may be stated as follows: By the terms of the written agreement referred to in the special defense, the plaintiff was to build a three-story frame dwelling house, complete, according to the plans and specifications mentioned in the agreement. The work was to be done under the supervision of the architects, and to their satisfaction. The first payment was to be $1,200, and to be made when the building was shut in, the roof tinned, and the chimney topped out; the second was to be $1,600, to be made when the building was plastered; and the third and last was to be $1,525, to be paid within 15 days after the work was completed, all material and rubbish belonging to the contractor removed, and all drawings and specifications returned. The agreement also contained the following: "Provided, that for all payments a certificate shall be obtained from and signed by the architects, said certificate in no way lessening the full and final responsibility of the contractor, and that security against mechanics' and other liens is to be furnished by said contractor." The plaintiff and the defendants entered into this agreement in June, 1894. In that month the plaintiff began work under the contract, and completed the building in November, 1894. The defendants immediately, by themselves and their tenants, went into the occupancy of said building. The defendants have never made the last payment called for by the contract. The architects referred to in the agreement still reside in New Haven. "They examined said building upon its completion, and told both plaintiff and defendants that the building was properly completed, and that said last payment was due; but they did not give to either party a certificate in writing that the payment was due." The materials furnished and services rendered by the plaintiff in the construction of the house were in substantial compliance with the contract, "and the materials so furnished and services so rendered by the plaintiff, and for which he has never been paid, were of the value of $1,525." "By mistake slightly wider clapboards were used in the gables of said house than were stipulated to be used, and some of the boards used in the floors were wider than those called for. The usefulness and value of the house were not diminished thereby, and the difference in cost of using them instead of those called for was less than $50. To remove them and replace them by such boards as should have been used would cause the defendants and their tenants great inconvenience, and would involve the plaintiff in a large expense." The lien was duly filed on the 7th day of December, 1894, to secure the payment of the balance claimed to be due under the agreement. "The defendants claimed that, as said house was not finished strictly as called for in said contract, the plaintiff had no lien for the materials furnished and services rendered by him as aforesaid, and also that the plaintiff could not demand payment therefor until he had obtained a written certificate from the architects that such payment was due, and could have no lien upon said premises until such certificate was obtained." The court overruled said claims. "The court deducted from said sum of $1,525 the sum of $50, for damages to the defendants for the plaintiff's failure to comply with the contract, and found the amount due the plaintiff from the defendants, with interest to the date of judgment, to be $1,626.98," and rendered judgment for the plaintiff therefor as on file.

The errors of which the defendants really complain in their brief, and upon...