Pittsburgh Plate Glass Co. v. Dahm

• Decision Date: 29 June 1970
• Citation: Pittsburgh Plate Glass Co. v. Dahm, 271 A.2d 55, 159 Conn. 563 (Conn. 1970)
• Court: Connecticut Supreme Court
• Parties: The PITTSBURGH PLATE GLASS COMPANY v. Douglas E. DAHM et al.

Page 55

271 A.2d 55

159 Conn. 563

The PITTSBURGH PLATE GLASS COMPANY v. Douglas E. DAHM et al.

Supreme Court of Connecticut.

June 29, 1970.

Vincent J. Dowling, Hartford, with whom, on the brief, were John F. Scully and David T. Ryan, Hartford, for appellant (defendant Continental Casualty Co.).

John A. Spector, Hartford, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

ALCORN, Chief Justice.

In 1962 the defendant Douglas E. Dahm, hereinafter referred to as Dahm, contracted with the department of public works to construct a building for the American School for the Deaf in West Hartford. Since the contract price exceeded $1000 and was for the construction of a public building, Dahm gave a bond with the defendant Continental Casualty Company, hereinafter referred to as Continental, as surety for the protection of persons supplying labor and material in the prosecution of the work as required by § 49-41 of the General Statutes. The plaintiff Pittsburgh Plate Glass Company, hereinafter referred to as Pittsburgh, as a subcontractor to Dahm, sold and delivered building materials to him in connection with the construction of the building for which $15,544 remained unpaid. By complaint dated February 11, 1966, Pittsburgh brought suit to recover the amount due. The action was brought pursuant to § 49-42 of the General Statutes, the material part of which is quoted in the footnote. ¹

Dahm was defaulted for failure to appear and, following a trial of the issues between Pittsburgh and Continental, the trial court rendered judgment in Pittsburgh's favor. Continental has appealed from the judgment.

The statute having created the cause of action and prescribed the procedure, the mode of proceeding is mandatory and must be strictly complied with. Beach v. Town of Trumbull, 133 Conn. 282, 289, 50 A.2d 765; Scoville v. Town of Columbia, 86 Conn. 568, 570, 86 A. 85. The principal issue on this appeal is whether the plaintiff's action was brought within one year 'after the date of final settlement of such contract' as required by § 49-42. Continental claims that the 'final settlement' was on July 7, 1964. Pittsburgh's claim is that the court properly determined that the final settlement occurred on November 24, 1965. Involved in these claims is a dispute over whether the court had seen fit to determine the final settlement date by the improper exercise of an administrative function.

No correction of the finding material to our determination of the appeal is required. The court found, in substance, that on July 7, 1964, the department of public works, after inspection, concluded that the work which had been done met the requirements of the contract with four minor exceptions and thereupon it transferred the custody of the building to the American School for the Deaf, which became responsible for its maintenance and for insurance coverage from that date. On that date, however, there were claims outstanding between Dahm, the state, and the American School for the Deaf, principally related to amounts due Dahm under the contract and for extras. As of July 9, 1964, there was no final settlement, and no determination of the final settlement date was ever made by the public works commissioner. There were many conferences concerning the conflicting claims until November, 1965, when the disputes were resolved, and on November 24, 1965, payment was made by the state and releases between the parties were executed. Both Pittsburgh and Continental requested the public works commissioner to furnish a certified statement of the date of final settlement pursuant to § 49-43 of the General Statutes, the material part of which is quoted in the footnote. ² The commissioner has never certified a final settlement date, however. Under these circumstances, the court concluded that final settlement had not occurred before November 24, 1965, so that the time within which the plaintiff was required to commence an action began to run on that date and, consequently, the action commenced on February 11, 1966, was timely.

As we have previously pointed out, the similarity between § 49-42 and the federal statute, popularly known as the Miller Act (40 U.S.C. §§ 270a-270d), makes the decisions of the federal courts relative to the latter helpful. International Harvester Co. v. L. G. DeFelice & Son, Inc.,151 Conn. 325, 333, 197 A.id 638. There seems to be no disagreement between the parties that the term 'final settlement' which appears in both the state and the federal statute does not mean final payment, 'but the administrative determination by the officer having the execution of the work in charge that it has been performed and his finally fixing the amount due'; R. P. Farnsworth & Co. v. Electrical Supply Co., 112 F.2d 150, 152 (5th Cir.); United States for Use and Benefit of F. B. Spear & Sons v. Arthur Storm Co., 101 F.2d 524, 526 (6th Cir.); or, as stated by the United States Supreme Court, the date of 'final settlement' is the date on which 'so far as the government was concerned, the amount which it was finally bound to pay or entitled to receive was fixed administratively by the proper authority'. Illinois Surety Co. v. United States, 240 U.S. 214, 221, 36 S.Ct. 321, 324, 60 L.Ed. 609; United States Fidelity & Guaranty Co. v. United States for Use and Benefit of Price, 65 F.2d 639, 641 (9th Cir.). It is unnecessary for us to decide whether, as claimed by the defendant, § 49-43 confers exclusive authority on an administrative authority of the state to issue a 'certified statement of the date of such settlement' and that the Superior Court improperly undertook to exercise such an administrative function. It is clear that a court may not perform administrative or nonjudicial functions. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 329, 269 A.2d 276; Adams v....