Persky v. Puglisi
| Decision Date | 13 January 1925 |
| Citation | 101 Conn. 658,127 A. 351 |
| Court | Connecticut Supreme Court |
| Parties | PERSKY v. PUGLISI ET AL. |
Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.
Suit to foreclose a mortgage by Simon Persky, trustee, against Guiseppe Puglisi, New Haven Paint Shop, Incorporated, the Lampson Lumber Company, the N. T. Bushnell Company, and others, in which the New Haven Paint Shop, Incorporated filed a cross-complaint. From a judgment for plaintiff, as against all defendants except the New Haven Paint Shop Incorporated, the Lampson Lumber Company and the N. T Bushnell Company appeal, and from a judgment for defendant New Haven Paint Shop, incorporated, upon its cross-complaint, plaintiff appeals. Affirmed as to the appeals of plaintiff and the N. T. Bushnell Company, and reversed with directions as to appeal of the Lampson Lumber Company.
Building contractor wrongfully deprived by owner of opportunity to complete contract was entitled to recover on quantum meruit though contract was indivisible.
Frank S. Bishop, of New Haven, for appellant Persky.
Charles F. Clarke, of New Haven, for appellant N. T. Bushnell Co.
John Elliott, of New Haven, for appellant Lampson Lumber Co.
Philip Pond and Benjamin F. Goldman, both of New Haven, for appellee New Haven Paint Shop, Inc.
On October 21, 1920, Joseph Puglisi, owner of the premises described in the complaint, mortgaged them to the plaintiff, as trustee, for $75,000, to secure 80 notes given by Puglisi, payable to bearer, aggregating that sum. By agreement the plaintiff retained a commission of $2,520, and a bonus of $12,000. The mortgage was given to finance the construction of an apartment house, and about February 20, 1921, Puglisi disappeared, leaving the building unfinished and leaving unpaid a number of claims of contractors, with whom he had contracted directly for materials furnished and services rendered in the construction of the building. On May 25, 1921, this action to foreclose the mortgage was brought against Puglisi, who defaulted, and 20 other defendants, of whom only 3 mechanics' lienors are now before us. The cause was referred to Warner, state referee, who reported that there was due on the plaintiff's mortgage $84,697.14, and found the facts bearing on the validity of the three claims in controversy. The superior court accepted the referee's report, and decreed foreclosure of the plaintiff's mortgage against all defendants except the New Haven Paint Shop, Incorporated; from this judgment the defendants the Lampson Lumber Company and the N. T. Bushnell Company have appealed. The court also entered judgment of foreclosure in favor of the New Haven Paint Shop, Incorporated, upon its cross-complaint, against the plaintiff, and from this portion of the judgment the plaintiff appeals.
We take up first the plaintiff's appeal:
The cross-complaint of the New Haven Paint Shop, Incorporated, is in the form commonly used in actions to foreclose mechanics' liens, except for the allegations that by scrivener's error, in the office of the town clerk, the record of the certificate states that the lienor's services were commenced on May 26, 1921, instead of on May 26, 1920, as the fact is alleged to be. Plaintiff's reply denies that the work was commenced May 26, 1920, and that the record to the contrary was by scrivener's error, and denies the priority of the Paint Shop lien over the plaintiff's mortgage. The referee found that the lienor commenced to render services on May 26, 1920, that the record, which purported to show that the work was not commenced until after it was finished, was obviously erroneous and incapable of misleading any creditor, and that the Paint Shop lien was valid and prior in date to the plaintiff's mortgage.
As to the amount of the lien the referee found that:
On this finding the court fixed the amount secured by the lien at $5,206, with interest. Assignments of error 1, 2, and 3 challenge the sufficiency of the referee's report to support the judgment in this particular. No. 1 is too general to be considered. Nos. 2 and 3 are to the effect that the court erred because the referee made no findings from which it could be inferred that the amount due the lienor was $5,206 with interest. The context of this part of the finding makes it clear that the referee was summing up with the utmost brevity the subsidiary facts found, and we think the court correctly understood the finding to say that the amount due on the lienor's contract was $6,806 as claimed in the lien, that the lienor did not complete its contract, and that the estimated cost of finishing the work according to contract was $1,600, leaving the net amount due, $5,206 with interest.
Plaintiff also makes the claim, under No. 10 of his additional reasons of appeal, that the court erred in assuming, in the absence of any finding at all on the point, that the overstatement of the claim to the extent of $1,600 was an innocent mistake and not intended to deceive. It does not appear, however, that any claim was made before the referee, calling on him to make a finding as to whether the overstatement was innocent or with intent to deceive. If that claim was in fact made, and the issue of fact not determined by any finding of the referee, the plaintiff ought to have moved to recommit. In the absence any such finding we cannot say that the court erred in failing to invalidate the lien upon a claim which may never have been made while there was opportunity to answer it.
The fourth and fifth assignments of error mistakenly assume that the trial court erred in giving priority to the Paint Shop lien, without any finding by the referee as to the date when the lienor commenced work. On the contrary the referee specifically found: " Contract was made May 26, 1920, and the company began work on that date."
The sixth assignment of error is that the court erred in " rescinding or vacating in part the judgment of the superior court given February 21, 1924." This is not a good assignment of error. It is not necessarily unlawful for a court to rescind or vacate its judgment in whole or in part. The change here complained of was in reducing the original adjudged amount of the mortgage debt, and no reason is given for assuming that the judgment as changed is not correct.
Reasons of appeal Nos. 8 and 9 assume that the judgment upholding the Paint Shop lien is erroneous, in the absence of a finding that the lienor's contract was divisible. In truth, the judgment is founded on the accepted principle that a building contractor, who has been wrongfully deprived by the owner of opportunity to complete his contract, is entitled to recover the reasonable value of materials furnished and services rendered in the construction of the building, even though his contract is an indivisible one.
Reasons of appeal Nos. 11-15 are based on the claim that no action to foreclose the Paint Shop Company's lien was brought within two years after it was perfected, for the reason that no service of the lienor's counterclaim was made on the absconded owner of the equity. The record shows that at the time the counterclaim was filed Puglisi had been brought into court by leaving an attested copy of the writ and complaint in the original action at his usual place of abode; that he made default of appearance; and that after the statutory continuance of 30 days and a finding of actual notice of the pendency of the action judgment by default had been entered against him.
The Paint Shop Company's cross-complaint was entitled in the original action and so comprehended all the parties to it but for some reason no service of copies of the cross-complaint was made, or attempted to be made, upon any other party than the plaintiff. Plaintiff's claim is that because Puglisi was an indispensable party to any action to foreclose the lien, the failure to serve...
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