Lar-Rob Bus Corp. v. Town of Fairfield

• Decision Date: 23 March 1976
• Docket Number: LAR-ROB
• Citation: 365 A.2d 1086,170 Conn. 397
• Court: Connecticut Supreme Court
• Parties: BUS CORPORATION v. TOWN OF FAIRFIELD et al.

Page 1086

365 A.2d 1086

170 Conn. 397

LAR-ROB BUS CORPORATION v. TOWN OF FAIRFIELD et al.

Supreme Court of Connecticut.

March 23, 1976.

Noel R. Newman, Town Atty., Bridgeport, for defendants (appellants).

Leslie Byelas, Bridgeport, with whom was Andre L. Nagy, Bridgeport, for plaintiff (appellee).

Before HOUSE, CJ., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The plaintiff, Lar-Rob Bus Corporation, brought this action in two counts against the defendants, the town of Fairfield and its board of education, claiming damages resulting from the breach of a contract for the transportation of school children. The defendants have appealed from the judgment of the trial court awarding damages to the plaintiff under the first and second counts of the complaint, and from the judgment against the plaintiff awarding nominal damages to the defendants on their counterclaim.

The defendants' extensive assignment of errors includes claims that certain facts were admitted or undisputed and should have been added to the finding. Some of these claims have not been briefed and are therefore considered to have been abandoned. State v. Marsh, 168 Conn. 520, 362, A.2d 523. The remaining requested additions cannot be included because they are not material or undisputed facts. Practice Book § 628(a); Charter Oak Estates, inc. v. Kearney, 160 Conn. 522, 525, 280 A.2d 885. The defendants also assign as error the finding of facts without evidence. Because the plaintiff has not included in its brief an appendix showing evidence on which the finding of these facts can be based, and such evidence does not appear in the defendants' appendix, these paragraphs must be stricken from the finding. White oak excavators, inc. v. Board of Tax Review, 169 Conn. 253, 363 A.2d 134. The deletion of these paragraphs does not affect the character or the disposition of the issues on appeal. The defendants have requested that other paragraphs of the finding be deleted because they are in language of doubtful meaning so that their real significance may not clearly appear. As stated in Practice Book § 628(b), '(s) uch correction will rarely be made'; and it is not required here. Correction of the finding of fact, insofar as it is required, is discussed in the opinion, as are any necessary corrections relating to the court's conclusions and the judgment rendered thereon.

I

The plaintiff has been transporting school children under contract with the defendants since 1962. In 1970, the plaintiff submitted a bid for a new five-year contract which was higher than other bids. Nevertheless, because of past favorable experience with the plaintiff, the defendants began extensive negotiations with representatives of the plaintiff. On February 27, 1971, the parties entered into a five-year contract. By its terms, there were to be thirty-five school bus routes, using one bus per route. Originally, the defendants had required that a new bus be purchased for use on each of the thirty-five routes. During the negotiations, however, it was agreed that the plaintiff would be required to purchase only thirty new buses and would use five older ones for several years. The contract specifically provided that '(f)or the school years commencing September 1, 1971, September 1, 1972, and September 1, 1973, the Contractor (the plaintiff) may use five 1968 60-passenger vehicles on regular routes, but these must be replaced with 66-passenger bus units when they reach the age of five years.' The final negotiated price was based on reduced costs for the plaintiff, resulting from the agreement between the parties that the plaintiff would use five 1968 model buses and would be required to purchase only thirty new ones. In 1972, as a result of a reduced school budget, the defendants reduced the number of school bus routes from thirty-five to thirty, eliminating the need for five buses. By letter dated July 26, 1972, the defendants specified that the plaintiff was to sell the five 1968 model buses. The plaintiff claimed it should be allowed to keep the older buses and to sell five of the thirty new buses which had been purchased the previous year. By mutual agreement, the older buses were sold without prejudice to the rights of the parties.

In count one of its complaint, the plaintiff claimed that the defendants had breached the contract between the parties by requiring the five 1968 model buses to be sold, which the plaintiff claims it was permitted by the terms of the contract to use through 1973. The trial court found that the contract had been engotiated upon the basis that the plaintiff would use five older buses for the years specified. The court properly concluded that the plaintiff had a contractual right to use those buses. The terms of the contract on that point are complete and unambiguous. A contract will be enforced according to the natural and ordinary meaning of the language used. Trumbull Electric Mfg. Co. v. John Cooke Co., 130 Conn. 12, 16, 31 A.2d 393. By requiring that the older buses be sold, the defendants breached the contract between the parties.

The defendants raised a special defense to count one of the plaintiff's complaint. Their special defense related to a second provision of the contract between the parties. All of the terms contained in that provision are relevant to this opinion. It provides: 'In the event that, during the school years commencing September 1, 1971, September 1, 1972, and September 1, 1973, more than thirty (30) bus units but less than thirty-five (35) of said bus units are utilized on a regular basis, the Town shall reimburse the Contractor for any actual dollar loss sustained by the Contractor resulting from the sale of any of said bus units by which the number thirty-five (35) exceeds the amount of bus units being used on a regular basis. The dollar loss shall consist of the difference between the sale price of any of the said bus units and the Contractor's equity including finance charges. The Town may choose which units are to be sold and may have the right to assist in selecting the highest bidder in the event of a sale.' This provision does not apply here. Under the terms of the contract between the parties, the plaintiff was never required to utilize 'more than thirty (30) bus units but less than thirty-five (35).' With the 1972 reduction in the number of routes from thirty-five to thirty, the number of buses utilized on a regular basis dropped to thirty. Therefore, this provision and the terms therein did not become effective.

The calculation of the number of buses utilized on a regular basis does not include eight buses which were used to transport private school students. The trial court found that the plaintiff transported those students in accordance with a letter sent by the defendants to the plaintiff and conversations between representatives of the parties. The court properly held that this subsequent agreement did not modify the terms of the original contract existing between the parties. The defendants, as the parties alleging that there was a modification, bear the burden of proof as to that issue. 17A C.J.S. Contracts § 588. The letter, ¹ which the defendants introduced into evidence, is not unequivocal proof that a modification of the original contract was intended. For a valid modification, there must be mutual assent to the meaning and conditions of the modification and the parties 'must assent to the same thing in the same sense (citations omitted) if they are to vary the contract in any way.' Hess v. Dumouchel Paper Co., 154 Conn. 343, 347, 225 A.2d 797, 799. The meaning to be given subsequent agreements, therefore, depends upon the intention of the parties. As intention is an inference of fact, 'the conclusion is not reviewable unless it was one which the trier could not reasonably make.' Finlay v. Swirsky, 98 Conn. 666, 671, 120 A. 561, 563, cited in Hess v. Dumouchel Paper Co., supra, 154 Conn. 349, 225 A.2d 797. The defendants do not seek to add to the court's finding evidentiary facts which are relevant to the court's conclusion that the subsequent agreement to transport private school students did not constitute a modification of the original contract. On the record, the court could reasonably and logically have found that there was no modification to include in the original contract the eight buses used to transport private school students.

The defendants claim that, by a term in the contract, they were to choose which buses would be sold by the plaintiff. That term is one of those contained in the provision discussed above, however, and was only to apply in the event that the number of buses needed was less than thirty-five but more than thirty. Therefore, there is no conflict between that term and the provision permitting the plaintiff to use 1968 model buses through 1973. The defendants did breach the contract by requiring that the older buses be sold, as the trial court properly concluded.

In its more specific statement, the plaintiff made a claim for damages resulting from the forced sale of the 1968 model buses. The plaintiff requested damages based on the amount by which its bid had been reduced, and by which its costs had been reduced, in consideration of the provision allowing the use of five older buses rather than requiring the purchase of five new ones. The trial court, finding for the plaintiff on the first count, computed damages using a different formula. Having concluded that the plaintiff should have been permitted to sell five of the new buses, the court calculated the loss to the plaintiff which would have resulted from the sale of new buses and awarded damages in that amount.

As the finding does not reveal the source of the formula applied by the court, we turn to the memorandum of decision. Ruggles v. Town Plan & Zoning Commission, 154 Conn. 711, 712, 226 A.2d 108. The following appears in that memorandum: 'The court is unable to...