John V. Schaefer, Jr., & Co. v. Ely

• Decision Date: 31 July 1911
• Citation: 80 A. 775,84 Conn. 501
• Court: Connecticut Supreme Court
• Parties: JOHN V. SCHAEFER, JR., & CO. v. ELY et al.

80 A. 775

84 Conn. 501

JOHN V. SCHAEFER, JR., & CO.

v. ELY et al.

Supreme Court of Errors of Connecticut.

July 31, 1911.

Appeal from Superior Court, Fairfield County; Howard J. Curtis, Judge.

Action by John V. Schaefer, Jr., & Co. against Elizabeth L. Ely and others on a building contract, to recover the balance due thereunder, and for the value of extra work done in connection therewith. There was a judgment for plaintiff, and defendants appeal. Affirmed.

John C. Chamberlain and George G. McNall (Ivins, Mason, Wolf & Hoguet. on the brief), for appellants.

Edwin L. Scofleld and Wilbur S. Wright, for appellee.

WHEELER, J. In the second count of the complaint, the plaintiff alleges that, on October 2, 1905, the plaintiff and defendants entered into an agreement, whereby the plaintiff was to furnish all material and labor for the erection of the buildings known as the Misses Ely School Building, at Greenwich, Conn., in accordance with the plans and specifications of Carrere & Hastings, architects, with such modifications as might be desired by the defendants, in consideration of the payment to it by the defendants of a sum equal to the cost of the work and $7,500 commission and 5 per cent. upon the cost of the added or modified work. The plaintiff alleges that there is still due and unpaid, according to the architects' certificate, $38,665.89.

In the first count, the plaintiff sets forth allegations in support of its claim to foreclose a mechanic's lien. In the second count, it sets forth allegations in support of a money recovery.

In the trial, the plaintiff did not claim a judgment of foreclosure of the mechanic's Hen, but asked for a money judgment, so that the allegations relating to a foreclosure may be omitted from consideration.

The appeal raises two questions, one upon the decision sustaining the demurrer to the seventh defense, and one upon a ruling on the evidence. In their seventh defense to both counts, the defendants allege:

(1) On March 10, 1906, the defendants were desirous of constructing a wing to the Misses Ely School Building, provided the cost of building and wing should not exceed the amount of money which they could control to pay for the same, and would not exceed the amount which could properly be invested in the business, which was the only business said building would be suitable for.

(2) On said date they acquainted the plaintiff with such desire and the reasons why a knowledge of said cost was of importance to them, and informed it that the amount of it would determine their action in the matter of building said west wing.

(3) The plaintiff, at the request of defendants, furnished them a statement of the work done and an estimate of the amount to be done to complete said main building as planned, being $152,447, and represented that said wing could be built for $35,000.

(4) Relying upon said statement, the defendants embarked upon the construction of said wing.

(5) The plaintiff incurred bills against the defendants for more than $200,000 in the construction of said building and wing, which amount was vastly in excess of the resources of the defendants, and of the amount justified by the business to be transacted in said buildings; and all of the money expended upon said building in excess of the amount stated by the plaintiff as necessary to build and finish the same was lost to the defendants.

(6) The plaintiff should be estopped from collecting from the defendants any sums in excess of the amount represented by them as necessary to build and Complete said building.

The plaintiff demurred to this defense upon the ground that it was under no duty to inform the defendants of the estimated cost of the building and the wing addition; that it never contracted to construct the building and the wing addition for $187,447, and if it did make such estimates the defense does not allege that it was made for the purpose of inducing the defendants to construct the said addition. This defense was intended to present an estoppel in pais.

It might be difficult, under the allegations of this defense, to escape from the defects of the defense which the plaintiff presses upon us—that the defendants must allege, not only an absence of knowledge of the truth, but of facts which show that they did not have equal means of knowledge with the plaintiff, and that the representation relied upon was made willfully, or intentionally, or fraudulently, or in gross negligence, with intent to be relied on, and the complaint is void of such allegations; that the representation relied upon is an expression of opinion, and cannot be regarded as a misrepresentation creating an estoppel; and that it is of a promissory character, relating to the future, and not to past or present facts. But these and other grounds of demurrer were not a part of the demurrer before us. Likewise, to sustain the demurrer upon the grounds it alleges would present some difficulty.

Whether the plaintiff was under "any duty" to inform the defendants would seem to be immaterial, since it in fact did furnish the information, and the facts which set forth the estoppel are based upon its response, as requested by the defendants.

The second ground of demurrer, that the plaintiff had not contracted to complete the main building and wing, would appear to be equally ineffective, since the estoppel did not depend upon a definite agreement, but upon a course of conduct.

The third ground, that there is no allegation that the representations were made for the purpose of "inducing" the defendants to act, seems at variance with the allegations of the purpose for which the defendants wished the knowledge, viz., to determine their action in building the west wing, and that the plaintiff gave this information "in compliance with said request, and to be used for the purposes aforesaid."

Regardless of the sufficiency of this seventh defense to withstand a demurrer based upon the grounds now claimed by the plaintiff, Its elimination from the ease has done the defendants no harm. It attempted to plead an estoppel in pais. That was unnecessary; such an estoppel could be proved without being pleaded. Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 395, 65 Atl. 134; Fish, Receiver, v. Smith, 73 Conn. 377, 387, 47 Atl. 711, 84 Am. St. Rep. 161; Plumb v. Curtis, 66 Conn. 154, 173, 33 Atl. 998; Hawley v. Middlebrook, 28 Conn. 527. 536. And the finding discloses that proof was offered of facts relied upon to establish the estoppel alleged in the seventh defense.

It is not essential to enter into a minute comparison between the finding and the terms of this defense to show that proof of the facts of the estoppel were before the court. It will suffice to point out some of the differences between finding and defense.

The court finds that the defendants decided to build the west wing on March 12th, and the estimates of the cost of the main building up to that time were not furnished until March 16th, and the estimates of the wing until after this date, thus negativing the allegation of the estoppel that the estimate induced the construction of the wing.

The court finds the estimate of this wing was $44,132, instead of $35,000, as stated in the defense. The court finds that the wing was to be built upon the terms and provisions of the contract for the main building, under which the plaintiff was to be paid the cost of construction, plus a commission for its services and the cost of extra work, with a commission thereon.

The defense alleges that after the estimates were received the defendants, with the knowledge of the plaintiff, relied upon them and embarked upon the work. Before this work was begun, it is thus seen, a definite contract was made, contemplating modified plans and extra work done by direction of the owner. Changes and additions in the work were made by the defendants, either themselves or through their architects, and these, with the cost of the wing, amounted to $158,106.03, and $59,507.14 was directly paid by the defendants to the persons doing the extra work. The court finds the plaintiff fully performed its contract and furnished said extras, and the architects so certified.

Further the court finds the work was done under the personal supervision of one of ...