Hoyt v. Pomeroy

• Decision Date: 08 May 1913
• Citation: 87 Conn. 41,86 A. 755
• Parties: HOYT v. POMEROY.
• Court: Connecticut Supreme Court

86 A. 755

87 Conn. 41

HOYT

v. POMEROY.

Supreme Court of Errors of Connecticut.

May 8, 1913.

Appeal from Superior Court, Fairfield County; Lucien F. Burpee, Judge.

Action by Dudley E. Hoyt against Arthur E. Pomeroy to recover for materials furnished and services rendered. From a judgment for plaintiff rendered on a report of the committee, after overruling a remonstrance thereto, defendant appeals. Affirmed.

Fessenden & Carter, of Stamford (Clement A. Fuller, of Stamford, of counsel), for appellant.

J. Lindsey Hoyt, of Stamford, for appellee.

RORABACK, J. The plaintiff is a builder and contracted in writing with the defendant to build a house for him. The complaint alleges that on the——day of May, 1906, the plaintiff began to perform his part of the contract and so continued until September 11, 1906, when the defendant refused to permit the plaintiff to finish his part of the contract, and took from the plaintiff the plans and details of the buildings mentioned in the contract, and gave to him a formal notice that he must cease work upon the' building; that at this time there was due to the plaintiff for work and materials furnished in pursuance of the contract $3,446; and a further claim of $227 is set forth in the second count of the complaint for services and materials furnished to the defendant at his request. Article 5 of the contract required that: "Should the contractor at any time refuse or neglect to supply a sufficiency of skilled workman, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified by the architect, the owner shall be at liberty, after three days' written notice to the contractor, to provide any such labor or materials and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor, for the said work, and to enter upon the premises, and take possession for the purpose of completing the work included under this contract, of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work and to provide the materials therefor, and, in case of such discontinuance of the employment of the contractor, he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but, if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate shall be conclusive upon the parties."

The defendant, under his answer and counterclaim, asserts that he is entitled to recover of the plaintiff $9,000, or such an amount as may be found due him over and above the plaintiff's claim. The basis of this claim is that the plaintiff, in the prosecution of the work, did not conform to the provisions of the contract in that he did not prosecute the work with diligence; that he failed to employ skilled workmen and furnish proper materials; that, after such neglect had been certified to by the architect, he gave the plaintiff written notice that on the 14th day of September, 1906, he would provide such labor and material as might be necessary for the prompt and final completion of the work agreed to be done under the agreement and would deduct the cost thereof and charge the same to any money that might be found due or might become due to the plaintiff; that in pursuance of this notice he discharged the plaintiff and completed the work included in the contract as nearly as the same could be done at an expense of not less than $11,714.74. A committee was appointed to hear the evidence and report the facts in the case. The committee filed his report in court, which was recommitted for further report, and a supplemental report was filed. The defendant filed a remonstrance to the report and supplemental report. This remonstrance was found untrue, overruled, the reports accepted, and the issues upon the complaint and counterclaim found for the plaintiff, and judgment was rendered for the plaintiff to recover $2,913.67.

The provisions in article 5, referred to, made the architect for this occasion a judge of the rights of the parties, and it was for him to certify not only that there had been a failure to perform upon the part of the contractor, but also that that failure, under certain conditions, warranted terminating the contract and the completion of the work by the defendant.

The writing upon which the defendant relies is in the following form:

"To Dudley B. Hoyt, South Norwalk, Conn. New York, Sept. 8, 1906. Sir: In view of the fact that you have for a long time past neglected to supply a sufficiency of properly skilled workmen and materials to carry out the contract entered into between you...