Lenox Const. Co. v. Colonial Const. Co.

• Decision Date: 30 January 1919
• Citation: 93 Conn. 234,105 A. 467
• Court: Connecticut Supreme Court
• Parties: LENOX CONST. CO. v. COLONIAL CONST. CO.

105 A. 467

93 Conn. 234

LENOX CONST. CO. v. COLONIAL CONST. CO.

Supreme Court of Errors of Connecticut.

January 30, 1919

Appeal from Superior Court, Fairfield County; William M. Maltbie Judge.

Action by the Lenox Construction Company against the Colonial Construction Company. Judgment for plaintiff, and defendant appeals. No error.

Action to recover the reasonable value of services rendered under a written contract, which it is alleged the defendant improperly refused to allow the plaintiff to perform, also for the value of certain tools and appliances, which the plaintiff alleges were converted to its own use by the defendant, brought to the superior court in Fairfield county and tried to the jury. Verdict and judgment for the plaintiff for $4,927.02, and appeal by the defendant.

The complaint at first contained three counts. By agreement of the parties the second count was eliminated during the trial of the case. The first and third counts of the complaint allege that the plaintiff and defendant, on March 21, 1917, entered into a written contract by which the plaintiff was to provide all the materials and provide all the work for the lathing and plastering of a four-story apartment building in the city of Bridgeport, for which the defendant was to pay $9,500; that the plaintiff, with his employé s, began work upon this building April 27 1917, and continued to work thereon until the 28th day of June, 1917, at which time it was required to suspend work in order that a plumber employed by the defendant might perform his part of the contract on the building, which, as the plaintiff was notified, would require two or three weeks that the plaintiff thereupon engaged in other work until July 9, 1917, when it returned to this building for the purpose of resuming work, and then it was informed by the defendant that it would not be allowed to do any further work on the building, and that its contract was at an end; that the defendant took possession of the plaintiff's tools and appliances and converted them to its own use; that at this time the plaintiff had rendered services and furnished materials of the reasonable value of $_____, of which sum but $295 had been paid; and that the reasonable value of the tools and implements which the defendant converted to its own use was $3,000. It also appears that the plaintiff introduced evidence to show, and claimed it had shown, that the allegations of its complaint were proven and true.

The defendant in its answer admitted that it made the contract that the contract price was to be as alleged and claimed by the plaintiff, and denied all the other allegations and claims of the plaintiff. It was also averred in the defendant's answer that the plaintiff neglected to prosecute diligently the work called for in the contract, and that, after receiving notice of such neglect from the architect, the defendant gave notice in writing to the plaintiff in substance that if it did not, within three days thereafter, employ a sufficient number of men to complete the contract without delay, the contract would be canceled; that the defendant would take possession of the tools and appliances and complete the work with other workmen; and that all of the expenses incurred by reason of its default would be charged to the plaintiff's account in accordance with article 5 of the contract. The defendant further averred in its answer that the plaintiff did not proceed to employ men to complete the work without further delay, and that thereupon it considered the contract canceled and took possession of the premises, tools, and appliances. The defendant offered evidence to prove, and claimed to have proven, the averments set forth in its answer, and that it had shown that it had complied with the terms of its contract with this exception. No evidence was offered by either party to prove that the expenses incurred by the defendant in completing the work had ever been audited and certified by the architect. The averments in the defendant's answer and counterclaim were met by a general denial in the plaintiff's reply and answer thereto. Later on the defendant filed a so-called substituted counterclaim alleging the same affirmative facts set forth in its answer. In this so-called counterclaim article 5 of the contract is said to be recited at length as follows:

" Article V. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days' written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work, and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools, and appliances thereon."

An examination of article V of the contract discloses that the defendant, in purporting to recite this paragraph of the contract entirely omitted the following:

" And to employ any other person or persons to finish the work and to provide the materials therefor, and in case of such discontinuance of the employment of the contractor they shall not be entitled to receive any further payment under this contract, until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but, if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties."

The plaintiff did not deny this paragraph of the counterclaim but it denied paragraph 7 thereof, which reads as...