Levesque v. D & M Builders, Inc.

• Decision Date: 03 February 1976
• Citation: 170 Conn. 177,365 A.2d 1216
• Court: Connecticut Supreme Court
• Parties: Gerard Reno LEVESQUE et al. v. D & M BUILDERS, INC.

Page 1216

365 A.2d 1216

170 Conn. 177

Gerard Reno LEVESQUE et al. v. D & M BUILDERS, INC.

Supreme Court of Connecticut.

Feb. 3, 1976.

Walter A. Twachtman, Jr., Rocky Hill, for appellant (defendant).

Philip P. Apter, East Hartford, with whom, on the brief, was Marvin Apter, East Hartford, for appellees (plaintiffs).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The plaintiffs, owners of a house and lot which they had purchased from the defendant, instituted this action to recover damages for breach of contract, breach of warranty, and negligence, claiming that the house which they had purchased had been built too close to the edge of the lot. ¹

The facts of the case are not in dispute. On April 29, 1968, the plaintiffs entered into an agreement with the defendant for the construction and purchase of a house on a lot being developed by the defendant in Southington. A certificate of occupancy was issued by the building inspector on July 23, 1968, and the following day a warranty deed to the property was delivered to the plaintiffs, who paid $22,600 for the house and lot. The deed recited that the lot was subject to 'any and all building lines and zoning restrictions as imposed by governmental authority,' and to a 'forty (40) feet building line as shown on the map referred to.' The original plot plan showed the house as being located, at its nearest point, forty-seven feet from the street line.

In May, 1969, the plaintiffs inquired of the building inspector with regard to adding a breezeway and garage. It was then discovered that, at its closest point, the house was only twenty-five feet from the street line, rather than the forty feet required by the Southington zoning regulations. The house is out of line with adjacent homes and the view from the back door is of the front door of the house on the adjoining lot. At the time the house was constructed and occupied by the plaintiffs, it was in violation of the Southington zoning regulations and subject to § 8-12 of the General Statutes which reads, in part: 'If any building or structure has been erected . . . in violation of any . . . (zoning) regulation . . ., any official having jurisdiction . . . may institute an action or proceeding . . . to restrain, correct or abate such violation . . ..' The house now comes under the protection of § 8-13a of the General Statutes which provides that '(w)hen a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building location shall be deemed a nonconforming use.'

The defendant does not contest the trial court's conclusion that the house was misplaced on the lot in violation of the Southington zoning regulations and in breach of the sales contract with and warranty deed to the plaintiffs. The only issue on appeal concerns the proper measure to be used in assessing the damages to be awarded to the plaintiffs.

The court ruled that the proper measure of damages is the cost of relocating the house, even though that cost might appear disproportionately high, and that the damages should be measured as of the date of the breach. The court found that the cost of moving the house to a proper location would be $3800, and the costs of building a new foundation, regrading, connecting utilities and related expenses would amount to $6000. The court also found that living expenses for the plaintiffs during the period when the relocation of the house is taking place would be $1000. ² The amount of damages was therefore set at $10,800.

As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553; Sabo v. Strolis, 148 Conn. 504, 506, 172 A.2d 609. Such damages are measured as of the date of the breach. Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477; Lee v. Harris, 85 Conn. 212, 214, 82 A. 186; 22 Am.Jur.2d, Damages, § 52. For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either '(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.' Restatement, 1 Contracts § 346(1)(a), p. 573. See annot., 76 A.L.R.2d 805, 812 § 4. As we stated in M. J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 288, 99 A. 853, 856: 'A different method (of assessing damages) . . . is required to accomplish the ends of justice where the shortcomings are such as may be remedied and completion according to the contract had without substantial interference with the structure of the building than where the remedy and conpletion involves substantial structural changes. . . . In the latter case, the amount of . . . (damages) might be measured by the diminished value of the building to the owner by reason of the defects.' This rule has its origin in considerations of equity and justice; id., 287, 99 A. 853, and is justified on the ground that although damages so measured may not be sufficient to place the injured party in the same physical position as would complete performance of the contract, his pecuniary position will be substantially as good. 5 Corbin, Contracts § 1090. Compare Scribner v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160, where the issue of economic waste was not in issue. This does not mean that there are not some cases where the difference in value may be the same as the cost of moving the structure. See Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348-49, 232 A.2d 307. Moreover, the cost of remedying the defect is admissible in proving the difference in value between...