Morici v. Jarvie

• Decision Date: 11 July 1950
• Court: Connecticut Supreme Court
• Parties: MORICI v. JARVIE et al. Supreme Court of Errors of Connecticut

Page 47

75 A.2d 47

137 Conn. 97

MORICI v. JARVIE et al.

Supreme Court of Errors of Connecticut.

July 11, 1950.

T. Holmes Bracken, for appellants (defendants Jarvie).

Before BROWN, C. J. and JENNINGS, BALDWIN, and INGLIS, JJ.

INGLIS, Judge.

This is an appeal by the defendants John H. Jarvie and Mary Jarvie, hereinafter referred to as the defendants, from two judgments which together adjudged a foreclosure of a mechanic's lien of the plaintiff upon their property. The facts were found by a state referee. There was a remonstrance to his report which was overruled. No evidence was printed and the overruling of the remonstrance was not assigned as error. The only errors assigned relate to the entry of the judgments upon the referee's report.

The essential facts found by the referee are as follows: On April 26, 1946, the defendants entered into a written contract with the plaintiff whereby it was agreed that the latter would provide the material and labor for the construction of a house, with the exception of plumbing and heating, for the defendants in accordance with certain plans and specifications, for the sum of $7,800, payable $1,000 when the foundation was completed, $2,250 when the roof was covered, $2,250 when finish plaster was on and the balance thirty days after the completion of the work. Thereafter the plaintiff sublet the mason work to the defendant Prete for the price of $3,000 and some of the carpentry work to the defendant DeSimone for the sum of $700.

The work on the house progressed and the first two instalments of the contract price were paid by the defendants on time. During the latter part of August the plaintiff demanded the third instalment. The interior finish plaster was then all on except in portions of two rooms as to which the defendants had asked delay. The plans, however, required so-called oriental plaster to be applied to the cinder blocks on the exterior. A dispute arose, the defendants claiming that the third instalment of the contract price would not be due until the exterior plaster was put on. They refused to pay the instalment until that was done. The plaintiff took the position, and correctly, that in the regular course of construction the application of the exterior plaster was one of the last operations in the construction of such a house and that, when the contract called for a payment when the finish plaster was on, it meant when the interior finish plaster was on. The defendants made no offer to pay the third instalment on any condition. They finally, on September 17, notified the plaintiff by letter that in order to receive any payment he must complete the job by October 8. The provision that the third instalment should be paid when the finish plaster was on was a material term of the contract, and the plaintiff abandoned the work.

There was substantial performance of the contract by the plaintiff up to the time the defendants refused to make the third payment. He had, however, failed to comply with it in a few minor matters. To make good these deficiencies would cost $440. The omissions were not the result of any wilful disregard of the contract but of difficulty in obtaining materials or oversight. In addition, the plaintiff had failed to install 'waylite' in the exterior walls of the building. That omission was due to the failure of the mason contractor to understand the requirements of the contract and not to any wilful breach. Waylite is an insulating material which was to be put into the cavities in the cinder blocks. The blocks themselves have a high coefficient of insulation and the value of waylite, therefore, is speculative.

The value of the work and labor provided by the plaintiff to the time he stopped work, if they had been in strict accordance with the contract, would have been $6,200. Deducting from that the cost of making good the deficiencies, i. e., $440, and the amounts of the first and second instalments, i. e., $3,250, leaves a balance of $2,510. The plaintiff failed to prove that he would have made a profit on the entire job if it had been completed.

On October 16, 1946, the plaintiff filed a certificate of mechanic's lien stating therein that the amount due was $7,000. In misstating the amount due it was not his intent to deceive, nor was any one prejudiced thereby. The defendants DeSimone and Prete also filed mechanic's liens. The amount due DeSimone from the plaintiff as of September 12, 1946, was $592, and the amount due Prete as of that date was $1,400. That would leave due the plaintiff, over and above these amounts, $518.

Upon the foregoing report, the trial court finally, on December 29, 1949, entered a judgment of foreclosure of the respective liens, finding the debt due the plaintiff to be $615.21, the debt due the defendant DeSimone, $703.10, and the debt due Prete, $1,662.73, and fixing law days for redemption.

In determining the correctness of this judgment, we need not discuss the assignments of error in detail. In the main, the defendants contend that on the subordinate facts the referee was not warranted in concluding that the plaintiff had substantially performed his contract. From this they argue that he is not entitled to recover the reasonable value of his services, particularly when, if he is allowed anything now, the cost of the house to them will, on the basis of other findings of the referee, exceed the contract price. The finding that the plaintiff had substantially performed his contract is a finding of fact which cannot be disturbed. The argument of the defendants ignores the point that upon the facts found by the referee the conclusion of law was inevitable that it was the defendants who breached the contract. The time of payments specified in the contract was material and of the essence of the contract. The unwarranted refusal of the defendants to pay the third instalment when it was due and their insistence that the plaintiff would have to complete the erection of the house before he received any further payments justified him in abandoning the work. It entitled him, upon his election, to recover in quantum meruit for the reasonable value of the labor and materials already furnished by him instead of seeking damages for breach of the express contract. Valente v. Weinberg, 80 Conn. 134, 135, 67 A. 369, 13 L.R.A.,N.S., 448; Edward DeV. Tompkins, Inc. v. Bridgeport, 94 Conn. 659, 682, 110 A. 183; McCleave v. John J. Flanagan Co., 115 Conn. 36, 40, 160 A. 305; 17 C.J.S., Contracts, § 475, page 981. The report found that amount to be $2,510 as of the time the defendants notified the plaintiff that they would make no further payments until he finished the work, and the court rightly concluded that he was entitled to recover it.

The defendants also assign as error the conclusion of the court that the mechanic's lien of the plaintiff was valid in spite of the fact that it grossly misstated the amount due. A misstatement in a certificate of lien of the amount due does not render the lien invalid if no fraud is intended thereby and no one is injured. Soule v. Borelli, 80 Conn. 392, 399, 68 A. 979; Kiel v. Carll, 51 Conn. 440, 441. The finding of the referee on that point justified the conclusion that the lien was valid.

After the remonstrance to the report of the referee had been overruled, the...