Martin v. Kavanewsky

CourtSupreme Court of Connecticut
Citation255 A.2d 619,157 Conn. 514
Decision Date04 February 1969
PartiesThomas W. MARTIN v. Joseph KAVANEWSKY et al.

Melvin J. Silverman, Norwalk, with whom, on the brief, were Max R. Lepofsky and George J. Lepofsky, Norwalk, for appellants (defendants).

Richard Greenwald, East Norwalk, with whom was Frank W. Murphy, Norwalk, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN JJ.

RYAN, Associate Justice.

The first count of the complaint sought recovery from the defendants for breach of contract. In the second count, the plaintiff alleged that, because of a breach of the contract by the defendants, the plaintiff was prevented from completing his contract. He sought damages in quantum meruit for labor and materials supplied to the land of the defendants. The case was tried to a state referee sitting as a court who rendered judgment for the defendants on the first count and for the plaintiff in the sum of $2783 on the second count. The defendants have appealed from the judgment rendered on the second count.

The defendants seek to have added to the finding a number of paragraphs of the draft finding on the ground that the facts stated in them were admitted or undisputed. To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614; Maltbie, Conn.App.Proc. § 158. That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. Practice Book § 628(a). 'The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534, and cases cited therein. A further requirement for such an addition to the finding is that the particular portion of the appendix, pleadings or exhibit, as the case may be, relied upon as requiring the addition, be pointed out in the appellant's brief. Maltbie, op. cit., § 328.' Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634, 636; Drazen Lumber Co. v. Casner, 156 Conn. 401, 403, 242 A.2d 754; Brockett v. Jensen, 154 Conn. 328, 330, 225 A.2d 190. Certain additions to the finding claimed by the defendants are implicit in the finding as made. Broderick v. Shea, 143 Conn. 590, 591, 124 A.2d 229. Other additions requested involved facts which are immaterial. Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 128, 239 A.2d 519. The defendants have not established any failure on the part of the trial court to include in its finding any fact which was material and was admitted or undisputed. The defendants also assigned error in other portions of the court's finding of subordinate facts and in certain of its conclusions. These assignments of error have not been pursued in their brief and are, therefore, treated as abandoned. Katz v. Brandon, 156 Conn. 521, 524, 245 A.2d 579; State v. Kohlfuss, 152 Conn. 625, 635, 211 A.2d 143.

The court found the following facts: On February 28, 1957, the defendants were the owners of certain lots in a residential area in the town of New Canaan, and the plaintiff was a builder and building contractor. On that date, the plaintiff and the defendants entered into simultaneous written agreements in which the defendants agreed to sell and convey lots to the plaintiff upon payment of an agreed price. Under the terms of these agreements, the plaintiff was given the right, prior to conveyance, to enter upon each of the lots and construct a residence thereon for sale. The defendants agreed to finance the construction by advancing to the plaintiff specified sums of money as the plaintiff specified certain specified steps of the construction. Upon the completion of the work on each lot, the plaintiff was given the right to find a purchaser therefor, and, upon the conveyance to the purchaser, the plaintiff was to repay the defendants the sums advanced for the construction, with interest. The plaintiff constructed and sold eight houses pursuant to these agreements. The plaintiff then commenced construction of a ninth house, and, prior to July, 1960, he had substantially completed the foundation, framing, roofing, surveying, electrical work and rough plumbing and had supplied the materials necessary to complete this work. He had, in a period of at least six weeks, supplied supervisory services which were reasonably worth the sum of $900. The defendants had advanced to the plaintiff the sum of $1000 on or about May 15, 1960, and the sum of $5000 on or about July 1, 1960. At the time the $5000 payment was made, the defendants notified the plaintiff that they would make no further advances on this construction. Thereupon, the plaintiff ceased construction, although on various occasions thereafter he inspected the premises for damage. The court found that the reasonable value of the labor, materials and services supplied by the plaintiff was $8783. From this sum, the court deducted the $6000 advanced by the defendants to the plaintiff and rendered judgment for the plaintiff to recover of the defendants the sum of $2783.

In their remaining assignments of error, the defendants attack the judgment on two grounds. First, they urge that, since the plaintiff in the second count of his complaint alleged that during the course of the construction he incurred expenses or became liable for certain sums of money for labor and materials, while acting under the terms and provisions of the written agreements, and the complaint contains no allegation of any independent oral contract with the defendants pursuant to which the plaintiff supplied labor and materials, a judgment based on the reasonable value of the labor and materials furnished to the defendants cannot be sustained. Second, they contend that the judgment cannot be sustained because there is no finding that any of the labor, material and supervisory services benefited the defendants.

The plaintiff and the defendants had entered into two distinct although simultaneous written contracts. In one, the defendants agreed to sell certain lots owned by them to the plaintiff. This...

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