Johnson Acoustics, Inc. v. P. J. Carlin Const. Co., 168947

• Decision Date: 31 August 1971
• Docket Number: No. 168947,168947
• Citation: 29 Conn.Supp. 457,292 A.2d 273
• Court: Connecticut Superior Court
• Parties: JOHNSON ACOUSTICS, INC. v. P. J. CARLIN CONSTRUCTION COMPANY et al.

Page 273

292 A.2d 273

29 Conn.Supp. 457

JOHNSON ACOUSTICS, INC. v. P. J. CARLIN CONSTRUCTION COMPANY et al.

No. 168947.

Superior Court of Connecticut, Hartford County.

Aug. 31, 1971.

Harry L. Nair, Hartford, for plaintiff.

Coles, O'Connell & Dolan, Bridgeport, for defendants P. J. Carlin Const. Co. and Aetna Casualty and Surety Co.

Robert Y. Pelgrift, Corporation Counsel, for town of West Hartford, garnishee.

SADEN, Judge.

On or about March 8, 1968, the town of West Hartford, as owner, signed a contract with the defendant P. J. Carlin Construction Co., hereinafter referred to as Carlin, as general contractor for construction of a school in West Hartford. On or about the same day Carlin, as principal, and Aetna Casualty and Surety Company, hereinafter referred to as Aetna, as surety, signed a labor and material payment bond in favor of West Hartford for $6,402,000. The plaintiff is a claimant qualified to file suit under the terms of the bond. The bond specifically provides that a claimant must sue in a state court in the county where the project is situated, or in the federal District Court where the project is situated, 'and not elsewhere.' The bond was required under § 49-41 of the General Statutes for the protection of persons supplying labor or materials. On March 26, 1968, the plaintiff became a subcontractor of Carlin for certain labor and material in connection with the school. The plaintiff claims it performed its work and is entitled to $6,532.73, the unpaid balance on its claim which Carlin refuses to pay.

The contract between the plaintiff and Carlin contains a provision requiring the rights of the parties to be construed pursuant to New York law, and an agreement by the plaintiff that it will not commence any action, legal or equitable, against Carlin 'or its sureties on bonds . . . because of any matter whatsoever arising out of the alleged breach or performance of this Subcontract Agreement in any Courts other than those in . . . New York, and the Subcontractor expressly waives any and all rights (it) might have by reason of the aforesaid bond provisions, if any, or by reason of any other cause whatsoever, to bring said action in any other court. The rights herein given the contractor shall also be deemed for the direct benefit of the aforesaid sureties . . . with the same force and effect as if they were parties hereto.'

Our applicable statute, General Statutes § 49-42, provides that every person furnishing labor or material who has not been paid in full before the expiration of ninety days after the last day of furnishing labor or materials for which claim is made may prosecute a suit 'in the superior court for the county where the contract was to be performed.'

Carlin demurs on the ground that its contract with the plaintiff requires the suit to be heard and decided only in New York courts. It argues that the modern rule is contained in Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 133, 209 A.2d 810, which construed a similar provision in a suit on a contract between a subcontractor and the contractor. Central sets forth Pennsylvania's view of the modern rule. But this case does not control the instant situation because it was not a suit on a labor and materialman's bond the terms of which provided that suit on it must be brought in the state where the work was performed. See footnote 7 on page 132, 209 A.2d 810 of Central, which very clearly points up the factual distinction in so many words.

In our case, we not only have a suit on a surety bond which by its terms requires suit to be brought in the county where the project is situated, but we also have General Statutes § 49-41, which makes such a bond mandatory and which must be read into the provisions of such a bond even if the bond's terms were to differ from the statute's. International Harvester Co. v. L. G. DeFelice & Son, Inc., 151 Conn. 325, 333, 197 A.2d 638 (where the court further explains the main purpose of § 49-41 (to expedite completion of public works by affording means of protection to suppliers of labor and materials)); New Britain Lumber Co. v. American Surety Co., 113 Conn. 1, 5, 154 A. 147.

For the same reasons that Central, supra, falls by the wayside as support for Carlin's position, so do Schwartz v. Zim Israel Navigation Co.,15 Misc.2d 576, 181 N.Y.S.2d 283, and Berner v. United Airlines, Inc., 2 Misc.2d 260, 266, 149 N.Y.S.2d 335. Both cases involved suits in which no statutory right or statutory bond was at issue making it mandatory to sue on the bond in a particular jurisdiction. Whatever...