Miner, Read & Garrette v. McNamara

• Decision Date: 03 March 1909
• Citation: 81 Conn. 690,72 A. 138
• Court: Connecticut Supreme Court
• Parties: MINER, READ & GARRETTE v. McNAMARA et al.

72 A. 138

81 Conn. 690

MINER, READ & GARRETTE

v. McNAMARA et al.

Supreme Court of Errors of Connecticut.

March 3, 1909.

Appeal from Superior Court, New Haven County; Silas A. Robinson, Judge.

Action by Miner, Read & Garrette against Dennis E. McNamara and others. From a judgment for defendant the S. W. Hubbell Building Company, rendered on sustaining its demurrer to the complaint, plaintiffs appeal. Affirmed.

The complaint alleges, in substance, the following facts: The defendant McNamara on May 1, 1907, leased to the plaintiffs for the term of five years, for the general purpose of a warehouse in their business as wholesale grocers, a four-story brick building, known as No. 44-46 Union street, Bridgeport. About a month after the plaintiffs had taken possession, and when they had merchandise valued at upwards of $14,000 stored therein, the building collapsed and fell, thereby destroying the plaintiffs' property. McNamara through his agents and servants, his codefendants in this action, had erected the building a short time previous to leasing it to the plaintiffs. Before its construction he had filed with the board of building commissioners of the city of Bridgeport, in accordance with one of its ordinances, a clear statement in writing of the proposed building, together with a copy of the plans and specifications of the same, and had obtained from that board a permit authorizing him to construct the building in accordance with those plans and specifications. No other statement or copy of plans was ever filed by him with the board, and no permit, special or otherwise, was ever issued by the board permitting any change in the plans and specifications of the building. McNamara and his codefendants in erecting the building departed from the plans and specifications, in that the building erected was four stories in height, instead of three stories, as therein specified, and the walls were substantially less in thickness, and the supporting piers less in number and smaller in dimension than those provided for in the plans and specifications. The walls as constructed also violated an ordinance of the city of Bridgeport designating the thickness of walls in buildings of the height and plan of construction of this one when situated, as this was, within the fire limits of the city.

The defendant the S. W. Hubbell Building Company did the carpenter work in said building and was negligent in the performance of it, in that the timber used was unsound, insufficient in size and strength, and not of proper quality to be used in the construction of a building of its character, and unfit for the support of the floors, walls, and ceilings thereof, and in that the floors, walls, and ceilings were not properly supported, braced, and strengthened so as to bear such reasonable weight as is customarily put upon the floors, walls, and ceilings of buildings of similar construction and such strain as said building company knew would, in the ordinary course, be put upon the floors, walls, and ceilings of the building. The defendant McNamara at the time he leased the building to the plaintiffs knew that in the construction of the building the city ordinance had been violated as above stated, that the building did not conform to the plans and specifications which he filed with the board of building commissioners, that the carpenter work, mason, stone, brick, and iron work had been negligently and improperly done, that the materials were of improper and inferior quality, and the walls, floors, ceilings, roof, and supports thereof were weak and insufficient, and that the whole building was in a dangerous, ruinous, and dilapidated condition and likely to fall and collapse if the building were in any way used or any strain or weight put upon the floors, walls, or ceilings thereof. None of these facts were known to the plaintiffs or any of them, and could not be discovered by an ordinary inspection or by any inspection which the plaintiffs or any of them were capable of making. The collapse and fall of the building were due entirely to the neglect of the several defendants, as above set forth, to the...