International Harvester Co. v. L. G. DeFelice & Son, Inc.

• Decision Date: 21 January 1964
• Citation: International Harvester Co. v. L. G. DeFelice & Son, Inc., 197 A.2d 638, 151 Conn. 325 (Conn. 1964)
• Court: Connecticut Supreme Court
• Parties: INTERNATIONAL HARVESTER COMPANY v. L. G. DeFELICE AND SON, INC., et al. Supreme Court of Errors of Connecticut

Page 638

197 A.2d 638

151 Conn. 325

INTERNATIONAL HARVESTER COMPANY v. L. G. DeFELICE AND SON, INC., et al.

Supreme Court of Errors of Connecticut.

Jan. 21, 1964.

James R. Greenfield, New Haven, with whom, on the brief, were Harry P. Lander and John H. Krick, for appellant (plaintiff).

Albert W. Cretella, Jr., New Haven, with whom was Albert W. Cretella, New Haven, for appellees (defendants).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.

ALCORN, Justice.

The plaintiff brought this action under § 49-42 of the General Statutes, seeking reimbursement for labor and materials claimed to have been furnished to Catello DiLauro, a subcontractor of L. G. DeFelice and Son, Inc., which had contracted with the state to construct a section of highway. General Statutes § 49-41 requires such a contractor to furnish to the state 'a bond in the amount of the contract * * * for the protection of persons supplying labor or materials in the prosecution of the work provided for in [the] contract.' L. G. DeFelice and Son, Inc., hereafter referred to as DeFelice, furnished such a bond. The five surety companies which signed the bond together with DeFelice, are defendants in the action. The plaintiff sought reimbursement from all defendants to the extent of $23,475.85. The court adjudged that the plaintiff recover of the defendants $1802.88, and the plaintiff has appealed.

The issues before us require an interpretation of § 49-42, the pertinent portions of which are quoted in the footnote. ¹ Our concern is with the portion of the statute which states that '[e]very person who has furnished labor or material in the prosecution of the work provided for' in the contract in respect of which the payment bond under § 49-41 is furnished may recover in an action on the bond. The court has found that all of the procedural requirements for the maintenance of an action under § 49-42 have been met. We have not, heretofore, been called on to construe the statute.

The corrections which are sought in the court's finding would not benefit the plaintiff in the view which we take of the case. The essential facts may be briefly summarized. On or about September 2, 1959, DeFelice contracted with the state to relocate and construct a section of highway. In connection with that contract and pursuant to § 49-41, DeFelice as principal entered into a bond with the other defendants as sureties and filed it with the state. In performing its contract, DeFelice engaged DiLauro as a subcontractor to haul fill for the road construction and has fully paid him for the work. DiLauro started work with six used trucks, the age and condition of which is not disclosed, and he purchased five more second-hand trucks during the course of the job. He used his trucks exclusively for hauling fill under his subcontract, save for about a dozen days when one truck may have been diverted to other work. DiLauro's hauling job covered the period from December, 1959, to August, 1960, and from March to August, 1960, he operated his trucks on a double shift so that some trucks were used twenty hours a day in order to meet a deadline. Throughout the period of the subcontract the trucks were subject to numerous breakdowns. The trucks were repaired either by the plaintiff or by DiLauro's employees with parts furnished by the plaintiff. Pink invoices were rendered DiLauro when both materials and labor for the repairs were furnished by the plaintiff. Yellow invoices were rendered DiLauro for parts purchased from the plaintiff but used in repairs made by DiLauro's employees. All invoices up to June, 1960, were paid by DiLauro. Invoices for June, July and August, 1960, amounting to $23,475.85, have not been paid, and DiLauro has been adjudicated a bankrupt.

The pink invoices embrace a multitude and variety of items. They include charges for such things as a new engine, a new transmission, radiator and wiring repairs, relining brakes, replacing a cylinder head, exchanging one transmission for another, new differentials, greasing, tuning motors, removing parts from one truck and installing them in another, installing an air bath assembly, replacing springs, remedying transmission noise, grinding valves, and overhauling generators and transmissions.

The yellow invoices include charges for such things as batteries, springs, axle shafts, a wheel, a mirror and a multitude of small items such as nuts, bolts, switches, gauges, pumps and spark plugs.

The court decided, in substance, that the charges for labor and materials appearing on the pink invoices represented major repairs in the nature of general overhauling, reconditioning, and installation of new motors and parts, and that the work amounted to permanent improvement in the equipment fitting it for use in other work rather than repairs due to ordinary wear and tear. The court concluded, for the reasons stated, that these charges failed to come within the purview of § 49-42, and it denied the plaintiff a recovery based on them.

The court decided, however, that the charges for parts listed on the yellow invoices were a proper basis for a recovery, because the parts were used in making incidental repairs necessary to keep the equipment in operating condition.

The two groups of invoices do not, however, lend themselves to this differentiation. The numerous labor charges made by the plaintiff on the pink invoices for relining brakes, greasing, tuning engines, grinding valves and overhauling generators and transmissions, to name but a few, could readily have been due to ordinary wear and tear and would not necessarily have amounted to a permanent improvement. On the other hand, new axles, springs or batteries did not necessarily become any the less new parts or improvements to equipment because they were installed by DiLauro's employees rather than by the plaintiff's.

The answer to the problem as to which, among the many, items are properly recoverable under § 49-42 calls for an interpretation of the statute which allows materialmen a just recovery for labor and material furnished in the prosecution of the work encompassed by the contract in connection with which the bond was given but at the same time, denies to the contractor capital improvements to his equipment at the expense of the principal and surety. This objective was recognized by the court in its reference to a distinction between 'permanent improvement of the equipment' and '[i]ncidental repairs reasonably necessary to keep the equipment in operating condition.' The crucial question, however, it how the one is to be differentiated from the other in the determination of what is labor or material furnished in the prosecution of the work.

Courts in other jurisdictions have not attempted an all-inclusive definition of material furnished in the prosecution of the work, 'for the facts and circumstances of each case are the sole determinants of the definition.' United States for Use and Benefit of J. P. Byrne & Co. v. Fire Ass'n of Philadelphia, 260 F.2d 541, 544 (2d Cir.). The interpretations of similar statutes in other states are of little help in an interpretation of our own statute because of the variations of wording involved. See, for example, Minn. Stat. § 574.26 (1961); N.H.Rev.Stat.Ann. § 447:16 (1955); N.Y. State Fin.Law, McKinney's Consol.Laws, c. 56, § 137; R.I.Gen.Laws Ann. §§ 37-12-1, 37-12-2 (1956); Cohen v. Henry N. Worthington Co., 334 Mass. 509, 515, 136 N.E.2d 237; Hub Oil Co., Inc. v. Jodomar, Inc., 176 Misc. 320, 322, 27 N.Y.S.2d 370. ²

An apparent kinship between our own and the federal statutes of similar purpose, however, leads us to decisions of the federal courts for precedent. In National Fireproofing Co. v. Huntington, 81 Conn. 632, 635, 71 A. 911, 20 L.R.A.,N.S., 261, we held that a mechanic's lien does not attach to and cannot be enforced against the public property of the state, or of a county or municipality. As a result of that decision, which was approved in Fenton v. Fenton Building Co., 90 Conn. 7, 13, 96 A. 145, the General Assembly enacted chapter 118 of the Public Acts of 1917. Norwalk v. Daniele, 143 Conn. 85, 86, 119 A.2d 732. The 1917 statute required a bond conditioned both for the faithful performance of the principal contract and for the payment for all materials and labor used or employed in the execution of the contract. In this respect, it corresponded to the federal statute commonly referred to as the Heard Act of 1894; 28 Stat. 278; although the Heard Act differed in other respects. The Connecticut statute of 1917 continued unchanged in the respect indicated, however, until 1941. See Cum.Sup.1935, § 1594c. In the meantime, on August 24, 1935, the Heard Act was supplanted by the act of Congress popularly known as the Miller Act. 49 Stat. 793, 40 U.S.C. §§ 270a-e. The Miller Act reinstated the basic provisions of the Heard Act and was designed primarily to eliminate certain procedural limitations. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 105, 64 S.Ct. 890, 88 L.Ed. 1163. It required a bond to a stated percentage of the contract price for the payment of materials and labor furnished in the execution of the contract. The proceedings surrounding the adoption of the amendment to the Connecticut statute, six years after the Miller Act was adopted, strongly suggest that the Miller Act was the model for our own statutes, §§ 49-41 and 49-42. The amendment was initiated in the 1941 session of the General Assembly by House Bill 1137, the language of which sought only to include rental charges for equipment used in the execution of the bonded contract within the coverage of the bond then required by the existing statute. Following committee hearings on the bill, a substitute bill was reported out. Patterned, in form and language, after the Miller Act, the bill called for the repeal of § 1594c of the 1935 Cumulative Supplement and the adoption of a requirement of a bond amounting to a stated...