Pierce, Butler & Pierce Mfg. Corp. v. Enders

• Decision Date: 16 July 1934
• Parties: PIERCE, BUTLER & PIERCE MFG. CORPORATION v. ENDERS et al.
• Court: Connecticut Supreme Court

174 A. 169

118 Conn. 610

PIERCE, BUTLER & PIERCE MFG. CORPORATION v. ENDERS et al.

Supreme Court of Errors of Connecticut.

July 16, 1934

Appeal from Court of Common Pleas Court, New London County; Charles B. Waller, Judge.

Action by the Pierce, Butler & Pierce Manufacturing Corporation against Thomas B. Enders and others to foreclose a mechanic's lien, brought to the court of common pleas and tried to the court. Judgment for plaintiff, and named defendant appeals.

No error.

Leon J. Beisheim, of Waterford, and Arthur T Keefe, of New London, for appellant.

Thomas E. Troland and Foster K. Sistare, both of New London, for appellee.

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

HINMAN, Judge.

The defendant Enders, who owns an island in the town of Stonington, on May 22, 1929, entered into a contract with Otis M. Townsend for certain alterations and additions to the house owned by him, under which Townsend agreed to furnish the materials and do all the work, including the plumbing. Later Enders also authorized Townsend to do extensive additional extra work. Theodore V. Townsend, as subcontractor under Otis Townsend, performed all the plumbing work called for in the contract and in connection with the extra work. The plumbing fixtures were furnished by the plaintiff commencing July 2, 1929, and ceasing May 5, 1930, on which date there was due to it $852.66. On May 24, 1930, notice of its intention to claim a lien was served on Enders, and on May 29th it filed a lien against this defendant's property. From June to August, 1929, Enders paid to Otis Townsend under the original contract sums aggregating $48,000, and during the period between August 30, 1929, and April 23, 1930, paid him $43,077.02 for additional services rendered and materials furnished. On May 17, 1930, Otis Townsend attached Enders' property in an action returned to the superior court in New London county, claiming damages under the original contract, which action is still pending. On July 17, 1930, the Chamberlain Metal Weather Strip Company filed a mechanic's lien for $1,024. In the present action judgment by default was entered against the defendants Otis Townsend and the Weather Strip Company. The foregoing findings of fact are not questioned on this appeal.

Findings which are attacked but which have sufficient support in evidence include that on May 5, 1930, the contract between Otis Townsend and Enders was substantially completed, and there was due the final payment thereon of $10,000; payment being subject, under the contract, to release of all liens. The only claimed defects in the work were in relation to the roofing and weather-proofing, the expense of repairing which did not exceed $1,000. No statements from the draft finding which would affect the result can be added as admitted or undisputed. The trial court could reasonably conclude, as it did, that at the time of the service by the plaintiff of notice of intention to claim a lien there was due from Enders to the original contractor, Otis Townsend, $9,000. It concluded, further, that the plaintiff established its lien in accordance with the statutory requirements, and that there was due thereon on the date of judgment $1,032.71.

The plaintiff alleged in its complaint that it furnished materials " under an agreement with Otis M. Townsend and Theodore Townsend, contractors for the construction of said house." On the trial it developed that Otis Townsend was the original contractor for all the work done for the defendant, and that Theodore Townsend was a subcontractor, under him, for the plumbing work for which the plaintiff furnished materials. The appellant claims that this constituted a fatal variance between pleading and proof, relying upon Mazziotti v. Di Martino, 103 Conn. 491, 130 A. 844. In that action, which was brought to recover on a written building contract, it was alleged that the plaintiff took over the entire contract, while the plaintiff's evidence showed that he assumed only the carpenter work; the part of the contract calling for mason work being taken over by another party. It was held that this variance went to the substance of the action and that recovery by the plaintiff would be for a cause which he had not fairly alleged in his pleadings. The variation in the instant case is not one which affects the identity of the cause of action or other essential of the claim, and it could not have misled or prejudiced the defendant in his defense on the merits. Under our rule and established liberal practice it may be disregarded as immaterial. Rules, § 186, Practice Book 1922 p. 285; Maguire v. Kiesel, 86 Conn. 453, 457, 85 A. 689; Plumb v. Griffin, 74 Conn. 132, 136, 50 A. 1. Moreover, as it does not appear that objection, as not within the allegations of the complaint, was made to admission of evidence as to the actual situation, such variance as there was is to be deemed to have been waived. Nocera v. La Mattina, 109 Conn. 589, 592, 145 A. 271.

The paragraph of the complaint which set up the other claimed incumbrances on the property included an allegation that Otis Townsend claims a lien for $50,000 by attachment dated May 17, 1930, and recorded. To this the defendant pleaded no knowledge, and the record does not show that any objection was interposed to evidence tending to prove the amount owing by the owner to the principal contractor. The finding discloses that the attachment was made in an action claiming damages under the original contract, which ever since has been pending in the superior court. No further finding was made or requested as to the nature of that action or the proposed defense to it. The defendant made a claim of law that the present action is premature " because the amount due Otis M. Townsend, *** if any, cannot now be determined," contending that such determination must await the outcome of the suit in the Superior Court and now assigns error in the overruling of that claim. In the situation presented by the pleadings and the evidence the trial court was warranted in holding that the pendency of the other action did not preclude ascertainment, for the purposes of foreclosure of the plaintiff's lien, of the amount of the contract price remaining unpaid. Upon proper pleading, in an action to foreclose a lien of a subcontractor the amount due the original contractor is a material issue. Daly & Sons v. New Haven Hotel Co., 91 Conn. 280, 99 A. 853. For that reason the original contractor should be made a party. Rockel, Mechanics' Liens, § 229. The fact that the same issue is presented in a pending suit by the original contractor against the owner, to which the subcontractor is not a party, cannot prevent its determination...