John Arborio, Inc. v. Scapin

• Decision Date: 10 July 1936
• Court: Connecticut Supreme Court
• Parties: JOHN ARBORIO, Inc., v. SCAPIN et al.

186 A. 488

121 Conn. 492

JOHN ARBORIO, Inc., v. SCAPIN et al.

Supreme Court of Errors of Connecticut.

July 10, 1936

Appeal from Superior Court, Litchfield County; John Richards Booth Judge.

Action by John Arborio, Inc., against Silvio Scapin and others to recover damages for breach of contract brought to the superior court and tried to the court. From a judgment for the defendants, the plaintiff appeals.

No error.

Richardson Bronson, of Waterbury, for appellant.

Thomas J. Wall, Thomas F. Wall, and Robert A. Wall, all of Torrington, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

AVERY Judge.

The plaintiff, a general contractor, was engaged in building two bridges in Peekskill, N. Y., and in connection therewith was required to excavate certain rock. The defendant was a partnership consisting of Silvio Scapin and four others, doing business under the name of S. Z. Z. C. D. Contracting Company. On April 22, 1931, the plaintiff entered into a subcontract with the defendants whereby they were to do a portion of the work consisting of certain concrete work and stone masonry. The defendant Fireman's Fund Indemnity Company furnished a bond to the plaintiff for the faithful performance of the work by the defendants. The subcontractors started the work, and after several weeks, about the middle of June, abandoned it. Thereupon the plaintiff gave notice to the bonding company of the abandonment, and completed the work covered by the sub-contract. The present suit is to recover from the defendants and the bonding company the cost to the plaintiff of completing the work above the price specified in the subcontract.

The trial court reached the conclusion that there had been a material breach by the plaintiff of its contract with the defendants, in that it had failed to furnish stone masonry of a size reasonably ready for the work as provided in its contract with them, that the breach justified the defendants in abandoning the work, and rendered judgment for the defendants. From this judgment, the plaintiff has appealed, claiming as errors the refusal of the court to find certain facts as requested, the finding of certain facts without evidence, the conclusion of the trial court that there had been a material breach by the plaintiff which justified the defendants in abandoning the work, and a ruling upon evidence.

The controversy on this appeal relates to that portion of the subcontract which pertains to the stone masonry, with regard to which the contract stated that the Scapin firm should build and erect " 290 cubic yards of stone masonry furnished by John Arborio, Inc., but not cut including handling of cement for $9.50 per cubic yard." The plaintiff was to do all excavating and filling, and the subcontract required that the subcontractors furnish to the plaintiff a bond in the amount of $10,000 for the completion of the work. The contract contained a provision, expressed in the form of an agreement by the contracting company, to settle by arbitration any controversy that should occur on the job.

The finding is that early in April representatives of the defendants came to the plaintiff's office in Poughkeepsie and discussed the matter. Subsequently all of the defendants came to Peekskill and submitted a written proposal or bid for the proposed work. This bid set forth that the subcontractor was to furnish " all labor, tools, lumber, necessary for building bridge concrete form." Prior to entering into the subcontract, the plaintiff, which was then engaged in finishing a bridge similar to the proposed bridges upon which the subcontractors were to work, called their attention to the sample bridge and several other bridges in the vicinity which had similar types of masonry, and stated that the masonry appearing in the sample bridge was the way the stone was to be set up and to appear in the completion of the subcontract. On the day of the execution of the contract, and before its execution, the defendants notified the plaintiff that they had no equipment or tools, except hand tools, and the plaintiff informed them that no tools were necessary but a mixer and crane, and agreed to furnish the mixer. The defendants agreed to supply a crane. The plaintiff also stated to the defendants that the stone mentioned in the subcontract as stone masonry not cut which was to be furnished by it to the defendants would not be larger in size delivered on the job than stone which one or two men could handle, and that the defendants would only be required to trim the stone with a hammer or chisel to fit into the bridges.

After the defendants had entered into the work, the plaintiff caused to be moved onto the job stone, known as blasting stone, which had been blasted out of the excavation. This was delivered...