Jones & Hotchkiss Co. v. Davenport

• Decision Date: 09 January 1902
• Citation: 74 Conn. 418,50 A. 1028
• Court: Connecticut Supreme Court
• Parties: JONES & HOTCHKISS CO. v. DAVENPORT.

50 A. 1028

74 Conn. 418

JONES & HOTCHKISS CO.

v. DAVENPORT.

Supreme Court of Errors of Connecticut.

Jan. 9, 1902.

Appeal from superior court, Fairfield county; Milton A. Shumway, Judge.

Action for the contract price of plumbing and for extras by the Jones & Hotchkiss Company against Sarah L. Davenport. From a judgment for plaintiff, defendant appeals. Affirmed.

The first count in the complaint was on a written contract, and alleged due performance. The contract was one for plumbing the defendant's house in the country, so as to supply it with a tank in the attic, bath tub, and water-closet, sink in butler's pantry, wash tray, boiler, soil pipe, and proper traps and connections. The job was to be finished "in workmanlike manner, and complete for the sum of $435." It called for soil pipes properly set and connected. The finding showed that it was so finished except that the plaintiff company made a putty joint, instead of a caulked joint with lead and oakum, to connect the waste pipe from the butler's pantry sink with the soil pipe beneath the floor of the butler's pantry, and said joint was of no value to the defendant; it constructed a trap underneath the bath tub and water-closet, and connected it with the soil pipe in the cellar in such manner that it was of no value to the defendant; it so placed the stopcock upon the hot water pipe leading to the bath tub that it could not be turned, and was of no value to the defendant; and it did not properly support the soil pipes. It would require the expenditure of $100 to complete it properly in this respect, and judgment as to this count was for the contract price, less that sum, with interest. The second count was for work and materials not included in the above contract.

Daniel Davenport and William A. Redden, for appellant.

Edward M. Lockwood, for appellee.

BALDWIN, J. (after stating the facts). The plaintiff alleged due performance of a written contract. The trial court has found that it was substantially, though not fully, performed. If so, the plaintiff, not being found to have been in willful default, had a cause of action for the reasonable value of the work and materials so furnished, estimated with reference to the contract price and to the resulting benefit to the defendant, provided she appropriated that benefit under circumstances sufficient to raise an implied promise to pay for it. Pinches v. Lutheran Church, 55 Conn. 183, 10 Atl. 264; Jones v. Town of Marlborough, 70 Conn. 583, 589, 40 Atl. 460. The plaintiff finished the job (so far as it did finish it) more than a year before its complaint was filed. It added to the defendant's house what evidently must have increased its value, provided the plumbing introduced were left in proper working order. It was not so left, but all the defects could be remedied for $100, which was but a fraction of the contract price. It is true that they were such as, till remedied, made all the plumbing worse than useless, because it was a necessary source of danger to the health of those inhabiting the house. But so would it have been had the soil pipe been accidentally left stuffed with shavings, which could have been removed in an instant. Potentially, the house was benefited by what had been done, and it might fairly be held that the contract was performed in substance, though not in all its details. The question before us is not whether, as matter of law, the contract was substantially performed, but whether it could, as a matter of fact, reasonably be held to have been so performed Wast v. Sr.da, 69 Conn. 60, 36 Atl. 1015. Under these circumstances, the superior court was justified in refusing to allow the defendant to enrich herself at the plaintiff's expense it may be that she could have had all that it had put in removed as worthless in its existing shape. But knowing or having the means of knowing, that a comparatively slight expenditure would make it all that the contract called for, she allowed ft to remain. This being so, the law implies a promise from her to do what she ought to do, and the judgment appealed from correctly measures her liability in this respect.

It is urged that the case made varies from the complaint. In the trial court there was a general claim of law that no finding of facts not alleged would support a recovery; but this was followed by the more specific claim that the plaintiff had failed to prove that it had performed the contract declared on, either exactly or substantially. The particular claim might properly be considered by the superior court as modifying the general claim, and withdrawing any objection which might otherwise have been raised on the score of variance, provided a substantial performance were made put. The court, having...