O'Loughlin v. Poll

• Decision Date: 17 December 1909
• Citation: 74 A. 763,82 Conn. 427
• Court: Connecticut Supreme Court
• Parties: O'LOUGHLIN v. POLL

74 A. 763

82 Conn. 427

O'LOUGHLIN

v. POLL

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from Superior Court, Hartford County; Milton A. Shumway, Judge.

Action by James O'Loughlin against Silvester Z. Poli for breach of a building contract, and on a quantum meruit for extras. From a judgment for plaintiff on both counts, defendant appeals. Affirmed.

Edward A. Harriman, for appellant.

William F. Henney and Harry W. Reynolds, for appellee.

PRENTICE, J. The complaint contains two counts. The first sets out the execution by the plaintiff, a building contractor, and the defendant, a property owner, of a written contract, whereby the former agreed to construct for the latter a theater building in New Haven, according to plans and specifications made a part of the contract, for the consideration of $81,000. It alleges the plaintiff's performance, and that $16,700 of the contract price is overdue and unpaid. The second was for the recovery of the reasonable value of extra work. Judgment was rendered for the plaintiff upon each count. No question is presented as to the action of the court upon the second. Under the first count the court permitted recovery for $13,391.93, with interest, as the unpaid portion of the reasonable value of the building to the defendant. This amount was arrived at in the manner hereinafter indicated. Two quite independent questions are thus suggested: First, whether or not, upon the facts found, the plaintiff was entitled to a recovery of said sum; and, second, whether or not, if so, that recovery could be had under the first count as framed.

Upon the trial no objection was made to any of the plaintiff's evidence upon the ground of variance, no claim was presented by the defendant that the pleadings were insufficient for the plaintiff's recovery thereon of whatever the facts in evidence disclosed him to be entitled to recover, and the brief of defendant's counsel before us expressly states that it is conceded for the purpose of the case "that the plaintiff may recover on the doctrine of snbstantial performance, and that he is entitled to recover 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," in accordance with the law as laid down in Jones & Hotchkiss Co. v. Davenport, 74 Conn. 420, 50 Atl. 1028. The concession thus stated is more fully elaborated in the brief, so that it clearly appears that all pleading questions involved are waived, provided the plaintiff's recovery is based, not upon a quantum meruit, but upon a contract, and the amount thereof is estimated with reference to the contract price. We are thus at liberty to pursue the broader inquiry as to the correctness of the court's action within the range thus permitted.

The defendant objects to the court's award (1) because the plaintiff was allowed too great a sum for his performance by reason of the adoption of an erroneous rule for its determination; (2) because a credit for a payment on account was refused; and (3) because judgment was rendered against the defendant upon his counterclaim for delay in the completion of the building.

In arriving at the amount for which recovery was had under the first count, the court, after having found the balance of the original contract price which remained unpaid, and that it would cost $89 to conform the work to the specifications in three minor details, deducted the latter sum from such balance, and rendered judgment for the amount thus determined. The propriety of the court's action in respect to these three minor deficiencies is conceded. It is urged that further deductions, amounting to $5,000, should have been made, and that in not making them the court ignored that factor in the rule formulated in Jones & Hotchkiss Co. v. Davenport, which requires that the reasonable value of the work and material furnished should be estimated with reference to the contract price, as well as to the resulting benefit to the defendant. The situation out of which this claim arises is briefly as follows: At the time the contract was executed, the defendant agreed with the plaintiff on certain modifications and alterations in the plans and specifications which had been prepared by the defendant's architect and were embodied by reference in the contract. This agreement was made, as the plaintiff testified, in consideration of the plaintiff's reduction of his bid from $86,000 to $81,000 and his assumption of the contract at that figure. Subsequently the modifications and changes which were the subject of this verbal agreement were reaffirmed by the defendant and carried out by the plaintiff upon the orders, and with the approval and consent of both the defendant and his architect. At the time the written contract was executed and the verbal agreement made, it was understood and agreed between the defendant and his architect on the one hand, and the plaintiff on the other, that these modifications and alterations were left to be worked out during the performance of the work. As the work progressed, details and drawings were made and furnished to the plaintiff by the architect for some of the modifications and alterations thus agreed upon. All the others were ordered by the architect and the defendant. One of the modifications consisted of the substitution for what is known as a Gustavino arch in the foyer of other construction, which resulted in a saving of $3,000 to the plaintiff. Other modifications thus made resulted in a saving of $2,000. None of these changes were made upon the written order of either owner or architect. The contract provided that no alterations should be made in the work except upon written order of the architect or owner, the amount to be paid by the owner or allowed by the contractor by virtue of such alterations to be stated in the order. The court finds that this provision in the contract was waived by the defendant. It also finds that there was no evidence to show that the building as constructed was of less value to the defendant by reason of any of the departures from the original plans and specifications which were within the terms of the verbal agreement. The evidence offered to establish the parol agreement was objected to by the defendant upon the ground that its purpose and effect was to vary the written contract. The court ruled that the testimony was inadmissible for such a purpose, but admitted it as bearing upon what it was claimed subsequently transpired between the parties with reference to its subject-matter. The questions involved in this ruling and in the action of the court in declining to reduce the amount of the plaintiff's recovery by reason of the changes with which the parol agreement was concerned find their answer in the same legal principles, and may...