Meyers v. Arm
| Decision Date | 01 May 1940 |
| Citation | 13 A.2d 507,126 Conn. 579 |
| Court | Connecticut Supreme Court |
| Parties | MEYERS et al. v. ARM et al. |
Appeal from Court of Common Pleas, Fairfield County; Origen S Seymour, Acting Judge.
Action by Gus Meyers, Sr., and another, against Ida Price Arm and others, to recover a balance due on a building contract, and against defendant Isaac Cohen upon an alleged promise to pay the amounts specified in the contract, brought to the Court of Common Pleas for Fairfield County and tried to the court. From a judgment for plaintiffs, defendant Isaac Cohen appeals.
No error.
Robert J. Woodruff, of New Haven (Arthur Klein and Nathan R Bassett, both of New Haven, on the brief), for appellant (defendant Cohen).
Aram H. Tellalian, Jr., and Edward S. Gall, both of Bridgeport for appellees (plaintiffs).
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.
This action was brought by Gus Meyers, Sr. and Arthur Chabot against Ida Price Arm, Irving Arm, her husband, and Isaac Cohen. The plaintiffs sought to recover for a balance of money due on a contract for rebuilding two stores in Bridgeport owned by the named defendant. The complaint was in two counts. The first count alleged the making of a contract on November 27, 1937, between the plaintiff Chabot and the named defendant, and that the interest of Chabot therein was assigned for value to the plaintiff Meyers; that the work had been duly completed and that $200 of the contract price had been paid, leaving $600 due and payable. The second count by reference alleged the execution of the contract. It did not mention an assignment thereof, but alleged that the defendant Cohen at the time of the execution of the contract promised to pay in full the amount specified therein. In this count performance was not specifically stated, but it was alleged that Cohen had paid $200 on the contract and the sum of $600 still remained due and unpaid.
From the finding these facts, which are challenged by the defendants' assignments of error, appear: Prior to commencing work upon the contract, the plaintiff Meyers undertook to investigate the financial ability of the defendants Arm. The plaintiffs, not being satisfied with the ability of Mrs. Arm to pay, had an interview with an attorney for Cohen, the holder of a second mortgage, and were assured that Cohen would pay the contract price because of his interest in the premises. The plaintiffs informed the attorney that Cohen required that an order be drawn upon him from Mrs. Arm directing him to pay over the $800 for repairs called for by the contract, and such an order was drawn and subsequently shown to the plaintiffs, and they were informed by the attorney that a written contract with Cohen was unnecessary but that the order would be binding upon him. Subsequently, about December 27, 1937, when the work was commenced, Cohen gave a check in the amount of $200 to be held in escrow until certain steel beams were in place and then delivered to the plaintiffs. This check was subsequently delivered. Thereafter, the plaintiffs saw the defendant Cohen in order to obtain more money to proceed under the contract and Cohen stated that he was anxious to have the work completed and would pay them directly for the full contract price. Thereafter, in January, 1938, after the work had been performed, Cohen, upon the premises, repeated his promise to pay the plaintiffs in full. The defendant Cohen's promise to pay the plaintiffs was a direct promise to them and was not in any way conditioned on the failure of the defendants Arm to make payment. The plaintiffs performed all of the work and supplied all of the materials required under the terms of the contract with the exception of such variations as were ordered by the defendant Irving Arm, and the performance was satisfactory to all the parties defendant.
Upon this appeal, the defendant Cohen contends that the plaintiffs did not allege a cause of action against him; that the facts proved were insufficient to support judgment against him; and that the promise of Cohen to pay for the work was unenforceable because oral and within the Statute of Frauds, Gen.St.1930, § 5982, and without consideration. The first count of the complaint does not mention Cohen. In the second count, it is not directly stated that the contract was performed. Performance is, however, implied from the allegation that the sum of $600 was...
To continue reading
Request your trial
-
Otto Contracting Co., Inc. v. S. Schinella & Son, Inc.
...is determinative of whether the agreement was an original undertaking not within the statute, is one of fact." Meyers v. Arm, 126 Conn. 579, 583, 13 A.2d 507, 509 (1940); Cordner v. Manevetz, 92 Conn. 587, 590, 103 A. 842 (1918). On the basis of the evidence and the record before it, the tr......
-
Town Of Newington v. Mazzoccoli.
...§ 22; certainly there is no sound reason why we should consider the claim now made when it was not advanced at the trial. Meyers v. Arm, 126 Conn. 579, 582, 13 A.2d 507; Conn.App.Proc. § 44. We point out, however, that the word ‘tavern’ as used in the ordinance does not necessarily have the......
- Sherman v. William M. Ryan & Sons, Inc.
-
Tedesco v. City of Stamford
...of defects in procedure which, had attention been called to them at the trial, could readily have been amended." Meyers v. Arm, 126 Conn. 579, 582, 13 A.2d 507 (1940). Therefore, any variance between the pleadings and proof at trial was clearly waived by the defendant's failure to object to......