O'Keefe v. Corp. of St. Francis' Church

• Decision Date: 12 December 1890
• Court: Connecticut Supreme Court
• Parties: O'KEEFE v. CORPORATION OF ST. FRANCIS' CHURCH.

22 A. 325

59 Conn. 551

O'KEEFE

v. CORPORATION OF ST. FRANCIS' CHURCH.

Supreme Court of Errors of Connecticut.

Dec. 12, 1890.

Appeal from superior court, Hartford county; Prentice, Judge.

A. P. Hyde and J. O'Neill, for appellant.

J. L. Hunter and E. B. Sumner, for appellee.

CARPENTER, J. This is an action to recover for materials furnished and labor performed in the construction of a church edifice. The complaint contains only the common counts. The first defense is a denial of the allegations in the complaint. The second sets up a written contract under which the labor and materials were furnished. The third alleges a disagreement of the parties as to extra compensation, a submission of that matter to the arbitrament of the architect, and an award by him that the plaintiff was not entitled to compensation for extras, etc. The fourth defense is that under the contract the plaintiff is liable to a forfeiture of $25 per day for 315 days, in consequence of a failure to completethecontract within the time stipulated. The fifth is that the defendant paid to the plaintiff over $46,000. The sixth sets up the payment of over $3,000 to one Patrick Maher, a subcontractor, for labor performed by him. The seventh alleges that the plaintiff neglected certain work, etc., and that by direction of the architect the defendant caused said work to be done at an expense of over $2,000. The plaintiff replied to the answer in substance as follows To the second, fourth, and seventh defenses, that the contract therein referred to had been abandoned; the third defense was denied; the fifth was denied, except as admitted by the credits given; and all the paragraphs of the sixth defense were denied. The defendant denied all the allegations in the plaintiff's replication. The case was tried to the jury, and a verdict rendered for the plaintiff. The defendant has appealed.

The first reason of appeal is "that the court erred in admitting parol evidence to prove that the excavations for the foundation walls were made deeper than shown on the plans, and that changes were made in the foundation, for the purpose of showing that the written contract had been rescinded or abandoned." For the purpose of proving that the contract was abandoned by the parties, the plaintiff relied upon the acts and conduct of the parties subsequent to the execution of the contract, and during the progress of the work, and upon the circumstances under which the work was done; and during the trial he offered a variety of evidence touching such acts, conduct, and circumstances. Included in the evidence so offered was evidence that various changes were made in the plan and construction of the building from that contemplated by the contract, and of how those changes were ordered. Such evidence was objected to by the defendant, and admitted by the court. The evidence so objected to and received was: (1) That the foundation walls were carried to a much greater depth than intended in the original plan or called for in the specifications and contract; that they were so carried under directions from the authorized agent of the defendant, and under a promise by him to pay therefor. (2)Thatgranite instead of brick was used for building the basement walls. (3) That granite instead of brown stone trimmings was used throughout the building. (4) That North Haven brick instead of Springfield brick was used in the construction of the walls. (5) That slate instead of galvanized iron was used upon portions of the roof.

The objection to this evidence was that the contract provided for changes and extras, and therefore that it did not tend to prove an abandonment of the contract. As to the foundation walls, there was a further objection, namely, that the contract itself required that the foundations should be dug down until a proper and suitable bed should be reached; so that what was done in that respect was strictly in performance of the contract, notwithstanding the direction of the agent and an express promise by him to pay. Among the requirements of the contract relative to alterations and extra work are the following: "The architect may require any alterations in the work shown or described in the drawings or specifications, and in every such case the price hereby agreed to be paid for the said work shall be increased or diminished as the case may require, according to a fair and reasonable valuation of the work added or omitted. ""The contractor shall make no claim for extra work unless the same shall be done in pursuance of a written order from the architect, and all such claims shall be made to the architect in writing, before the next ensuing payment, or shall be considered abandoned by the contractor. "Clearly the performance of a contract according to its terms is no evidence that the contract was abandoned; on the contrary, it is cogent evidence that it was not abandoned. If, therefore, the defendant could have shown such a performance, it would have put an end to this contention of the plaintiff; and this is true of deviations from the contract, if such deviations are provided for and made in the manner prescribed. It was therefore incumbent on the plaintiff, in order to make such evidence available, to show not only that the contract was departed from, but also that the contract was not followed in making such departure. Strictly speaking, the first step in the proof was to show the deviation, and the next to show that it was not under the contract. The first was admissible as a preliminary step, or as laying the foundation for the second. If, under the second branch, there was any evidence for the jury to consider, the plaintiff was entitled to the first, and the evidence was properly-received.

There were several particulars in which it was claimed that the contract had been departed from. The number of such variations was a circumstance which the jury might properly consider. If changes were made in the plan or specifications with respect to the material used, or the style and quality of the work, without taking the steps pointed out in the contract, as there were in some instances, the manner of making such changes was some evidence that the parties did not regard the contract as still in force. Numerous instances are referred to in the supplemental finding. It is there found that evidence was offered by the plaintiff to show that all the various alterations in the building were made without any requirement therefor from the architect as provided in paragraph 5 of the contract, but by the par ties, and at the request of the defendant; that the parties never recognized the written order of the architect as a basis of a claim for extra work, as specified in paragraph 14 of the contract, but wholly ignored this requirement from first to last; that the parties wholly disregarded the provision of paragraph 14 that no claim for extra work would be recognized unless made to the architect in writing before the next ensuing payment; that the parties ignored the provision in the contract as to date and penalty for completion, as provided in paragraph 11 of the contract, and the provisions of paragraph 12 as to the mode of obtaining allowance of additional time, and acted upon mutual agreement; that the defendant, without the knowledge of the plaintiff, employed Patrick Maher to work laying up the brick walls, the laying of which walls was included in the contract, without terminating the employment of the plaintiff, as provided in paragraph 13 of the contract, and in disregard of the provisions of that paragraph in regard to employing other persons and as to the expense incurred thereby; that payments on account of the work were not made in the amounts or at the times provided in the contract; and that the payments were invariably made as the parties verbally agreed, and never upon the certificate of the architect, as provided in paragraph 16. Upon this statement of the case it is impossible for us to say that the evidence objected to was improperly permitted to go to the jury; especially as the court was careful to explain to them the nature, force, and effect of the contract, and to caution them not to find an annulment or abandonment unless the evidence satisfied them that both parties intended to set aside the contract and disregard its provisions.

The second reason of appeal raises the question whether parol evidence was admissible of a promise by the defendant to pay extra compensation for excavating for the foundation walls deeper than the plans called for. In the defendant's brief it is said that the evidence we have already considered was admitted by the court against the defendant's protest, as evidence that the parties had waived the written provisions of the contract as to extras. We do not find in the record that the evidence was offered or received for the purpose of proving a waiver. Technically, therefore, there is some difficulty in considering the question as a question of evidence. But the same question is raised in another form. The defendant's sixth request is as follows: "The agreement provides that the contractor shall make no claim for extra work unless the same shall be done in pursuance of a written order from the architect; and that all such claims shall be made to the architect in writing before the next ensuing payment, or shall be considered abandoned by the contractor. Now, this clause protects the defendant against all claims for extra compensation that are not wholly independent of the contract, unless the certificate of the architect in writing is produced, and his claim for extra compensation was made in writing as required by the contract; and, so far as this part of the case is concerned, the case is not altered, although the additional work was ordered by the general agent' of the defendant corporation." The court did not so charge, but charged as follows: "If, however, the plaintiff excavated to a greater depth than 1 have...