McCleave v. John J. Flanagan Co.

• Decision Date: 10 May 1932
• Citation: 160 A. 305,115 Conn. 36
• Court: Connecticut Supreme Court
• Parties: McCLEAVE v. JOHN J. FLANAGAN CO.

160 A. 305

115 Conn. 36

McCLEAVE v. JOHN J. FLANAGAN CO.

Supreme Court of Errors of Connecticut.

May 10, 1932

Appeal from Superior Court, New Haven County; Frank P. McEvoy Judge.

Action for damages for breach of contract by Susan McCleave against the John J. Flanagan Company tried to the court. Judgment on the pleadings for defendant, and plaintiff appeals.

No error.

Robert J. Woodruff and Louis Shafer, both of New Haven, for appellant.

John M. Chapnick, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS JJ.

HAINES, J.

The complaint is in two counts, the first being for the claimed breach of contracts to erect two houses for the plaintiff alleging that, after performing part of the work, the defendant abandoned them, and the second for breach of a contract to remodel the plaintiff's dwelling house alleging that, after performance of part of the work, the defendant abandoned it, both breaches causing the plaintiff great loss. There was a general denial and then two special defenses: (1) That the defendant had previously brought three actions to foreclose mechanics' liens based on these same contracts; that the present plaintiff had made no defense, and, by stipulation of counsel, judgments had been entered in favor of the present defendant; and that these judgments were res adjudicata of every issue raised in the present action; (2) another special defense making similar allegations and claiming that the plaintiff is estopped by the judgments rendered. After numerous pleadings, the plaintiff demurred to these special defenses on the grounds that it did not appear that the issues raised and decided in the former actions were the same as those now raised, or that the present issues were litigated or should have been litigated in those actions, or that the evidence required in the present action would have sustained the judgments in the previous actions. the court overruled the demurrer, and this ruling is assigned as error.

The special defenses to which the demurrer was filed referred to the previous cases only by the numbers they bore in the files of the superior court.

The superior court can take judicial notice of the files and records in another suit formerly pending in that court between the parties. Hartford v. New York & N.E. R. Co., 59 Conn. 250, 253, 22 A. 37. Whether this court can likewise take judicial notice of the files and contents thereof in the superior court is a question which has never, so far as we are aware, been specifically raised in this court.

" To take judicial notice is a function, and to apply it to the decision of causes a right, which appertains to every court of justice, from the lowest to the highest, and in the exercise of appellate, no less than of original, jurisdiction." Arthur v. Norfield Cong. Church, 73 Conn. 718, 731, 49 A. 241, 246; Hygeia Distilled Water Co. v. Hygeia Ice Co., 70 Conn. 516, 40 A. 534. " The true conception of what is judicially known is that of something which is not, or rather need not, unless the tribunal wishes it, be the subject of either evidence or argument-something which is already in the court's possession, or at any rate is so accessible that there is no occasion to use any means to make the court aware of it." DeLuca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611, 612; State v. Main, 69 Conn. 123, 136, 37 A. 80, 36 L.R.A. 623, 61 Am.St.Rep. 30. " The doctrine of judicial notice is not a hard and fast one. It is modified by judicial discretion. *** Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved, and the apparent justice of the case." DeLuca v. Park Commissioners, supra, page 10 of 94 Conn., 107 A. 611; St. Louis v. Niehaus, 236 Mo. 8, 16, 139 S.W. 450, 452. We have no hesitation in holding that the files of the superior court may be the subject of judicial notice by this court, in its discretion. These files were admissible evidence in support of the claims of res adjudicata and estoppel by judgment. Storrs v. Robinson, 74 Conn. 566, 567, 51 A. 516; Id., 77 Conn. 207, 209, 58 A. 746; Huntley v. Holt, 59 Conn. 102, 105, 106, 22 A. 34, 21 Am.St.Rep. 71.

Such an examination of the files in the foreclosure actions in the superior court for New Haven county, Nos. 33631-33633 discloses that, mutatis mutandis, the claims made and issues joined in each of them were the same. The allegations of the complaints were, in effect, that the company had furnished materials and rendered services in the construction of the two houses and the remodeling of another, under contract with the owner; that the contract price was $9,000 for each of the two new houses payable in three equal installments of $3,000 each as certain stages of the work were reached, and $2,700 for remodeling the third house; that the company performed the work until the 26th day of May when it ceased work for the reason that the owner had defaulted on the entire contract in each case, by notice to the company that she could not perform any part of her undertaking, and in fact had not done so.

Although payments required from the owner were to be, in part, in installments, these were not divisible but entire contracts. Where the contract provides a certain sum for the work as a whole, the contract is regarded as entire, and it will not be rendered divisible by the fact that the compensation is payable in installments, as where the work reaches certain stages of completion. Butterfield v. Byron, 153 Mass. 517, 27 N.E. 667, 12 L.R.A. 571, 25 Am.St.Rep. 654; American Surety Co. v. Fidelity Trust Co. (C. C. A.) 179 F. 699; C.J., Vol. 9, p. 713.

The right of the company in such a case to the payment of each installment would be dependent upon its performance of or readiness to perform the contract as a whole. In the present situation, the allegation...