M. Shapiro & Son Const. Co. v. Battaglia

• Decision Date: 14 August 1951
• Citation: M. Shapiro & Son Const. Co. v. Battaglia, 83 A.2d 204, 138 Conn. 238 (Conn. 1951)
• Court: Connecticut Supreme Court
• Parties: M. SHAPIRO & SON CONST. CO., Inc. v. BATTAGLIA et al. In re BATTAGLIA'S ESTATE. Supreme Court of Errors of Connecticut

Page 204

83 A.2d 204

138 Conn. 238

M. SHAPIRO & SON CONST. CO., Inc. v. BATTAGLIA et al. In re BATTAGLIA'S ESTATE.

Supreme Court of Errors of Connecticut.

Aug. 14, 1951.

M. J. Blumenfeld, Hartford, with whom was Israel Nair, New Britain, for appellants (defendants).

Hugh M. Alcorn, Jr., Hartford, with whom were Harold J. Eisenberg, New Britain, and, on the brief, Henry P. Bakewell, Hartford, for appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BALDWIN, Judge.

The plaintiff, a general contractor engaged in constructing large housing projects, sued the defendants, executors under the will of Joseph Battaglia, a subcontractor, to recover damages for the breach of a construction contract. The defendants denied the breach and filed a counterclaim alleging a breach on the part of the plaintiff. The jury returned a verdict for the plaintiff on the complaint and counterclaim and the defendants appealed, assigning errors in the charge and in rulings on evidence.

In 1946 the plaintiff was under contract to construct 191 single-family dwelling houses on a site in New Britain. On July 18 it executed an agreement with the decedent by which he was to furnish all the material and equipment and do all the work necessary in preparing the site for building houses. This included clearing and grading the land, constructing the roads, sidewalks and driveways, placing the curbing, excavating for and laying the storm-water and sanitary-sewer laterals, digging the cellars and redistributing the top soil. The contract required the decedent to complete his work 'at the earliest possible date' and stated that the time fixed for performance was of the essence of the agreement. It also provided that the decedent should commence work when directed by the plaintiff and carry it on, at such times and in such order, with such men and equipment, as the plaintiff might direct, so that the work could be co-ordinated with that of the other contractors and the whole project could be completed on time. It further stipulated that if the decedent should not commence the work when directed or should abandon it or should not perform it within the time specified, the plaintiff could terminate the contract by giving notice, complete the work and hold the decedent responsible for increased costs and damages. The decedent also had a contract with the city of New Britain to put in the storm-water and sanitary sewers on the same site and to complete that installation in 143 days. So much of the facts was not in dispute.

The parties were at issue over the performance of the contract, its subsequent breach and abandonment and the responsibility for the cause which brought about a breach. The plaintiff offered evidence from which it claimed to have proved the following facts: The work which the decedent undertook was singularly important because the general progress of the whole job depended upon his efficient and expeditious performance. The plaintiff employed him because he was to put the storm-water and sanitary sewers in for the city, work which had to precede the building of roads, curbs and sidewalks by the plaintiff in furtherance of its general contract. Shortly after the execution of the contract on July 18, 1946, the plaintiff directed the decedent to start work. It soon became apparent that neither the work for the city nor for the plaintiff was being carried forward effectively, owing to the failure of the decedent to plan his work properly or to have enough men and equipment to do it. Although the city gave instructions to commence the performance of its contract on August 2, the decedent delayed until August 19. Instead of completing the work in 143 days as agreed, he took 442 days. Beginning with a formal complaint on September 25, 1946, concerning the progress of the work, the plaintiff repeatedly, insistently and justifiably, by letter and telegram and in conferences between representatives of the parties, complained to the decedent about his delays and noncompliance, but all to no avail. This course of conduct continued throughout 1946 and 1947. The plaintiff in order to cooperate with the decedent prepared work schedules which he failed to adhere to, made suggestions and recommendations which he failed to heed, and finally relieved him of part of the work he had agreed to do, all to no purpose. Twice in 1947, without advising the plaintiff, the decedent advertised all of his contracts and equipment for sale. On December 22, 1947, the decedent stopped work altogether because of the onset of winter, although other contractors continued on.

After the death of the decedent on January 18, 1948, the defendants, having been appointed executors, sought to secure the release of the decedent's estate from the performance of the contract, by suggesting the they, individually, would continue performance. The plaintiff refused this proposal. At this time all of the decedent's equipment was withdrawn from the job, repaired, painted and displayed for sale. When the decedent ceased work in December, that portion of the job remaining to be done was the most expensive and least profitable for the subcontractor. Representatives of the parties met on March 23, 1948, and all matters of back charges and extras claimed by the defendants were adjusted. A further conference, for the purpose of fixing a definite date for the resumption of work, was set for March 29. Notwithstanding this arrangement, the defendants dismissed all their employees on March 27 and filed final social security and old age assistance tax returns. On March 29, they agreed with the plaintiff's representatives to resume work April 5. When they so agreed, the defendants had no employees, their equipment was for sale, and they had no bona fide intention of resuming work. Although the weather was suitable for work on April 5, they failed to resume work then or on the two days following, in spite of further efforts by the plaintiff to get them to do so. On April 7, 1948, the plaintiff terminated the contract by a letter to the defendants which they received on April 8. The defendants abandoned the contract on or about April 5. The plaintiff completed the work at an additional cost of $23,871.36.

The defendants offered evidence from which they claimed to have proved the following facts: Their contract called for a base price of $130,000 subject to additions or deductions. On or about March 31, 1948, the plaintiff submitted a list of adjustments, requesting acceptance thereof as confirmation that the original agreement as supplemented and modified would continue in full force and effect. At conferences on March 23 and 29 the parties set April 5 as the tentative date for the resumption of work. The defendant Harry Battaglia assured the plaintiff that the defendants' equipment had been overhauled and repaired and was ready to commence work when the weather and ground conditions permitted. The two defendants and five additional key men had been at work during the winter painting and overhauling the equipment. The defendants' employees were given a week's vacation on March 27 and told to report for work April 5, which they did. On April 4 the defendants made preparations to begin work. The weather and ground conditions were not suitable for resuming on April 5, 6, or 7. The failure of the plaintiff to put in the curbs, which it had agreed to do, and the delay of the gas company in completing its work of putting in gas mains and laterals made it impossible for the defendants to resume operations. Although they made reasonable efforts and preparations to do so, it was not possible to begin work on April 5. On April 6 the plaintiff put them off the job, although the were at all times ready, able and willing to perform the contract. Their failure to resume work on April 5, 6 or 7 did not substantially or materially affect the time for the completion of the contract. The plaintiff itself breached the contract on April 7.

The defendants assign error in certain portions of the charge and in the refusal of the trial court to charge as requested. They allege that the court erred in its charge because it made the whole issue of the abandonment of the contract depend upon the answer to two questions: Did the parties agree that the defendants would resume work on April 5, 1948? If so, did the defendants fail to resume work on that day? The defendants have culled two passages from the court's charge and subjected them, bare of the context in which they were placed and isolated from the rest of the charge, to their criticism. It is axiomatic that a charge must be read and considered as a whole. Cackowski v....