Rusco Industries, Inc. v. Hartford Housing Authority

• Decision Date: 18 February 1975
• Citation: 168 Conn. 1,357 A.2d 484
• Court: Connecticut Supreme Court
• Parties: RUSCO INDUSTRIES, INC. v. HARTFORD HOUSING AUTHORITY et al.

Page 484

357 A.2d 484

168 Conn. 1

RUSCO INDUSTRIES, INC. v. HARTFORD HOUSING AUTHORITY et al.

Supreme Court of Connecticut.

Feb. 18, 1975.

Louis M. Winer, with whom was J. Michael Sulzbach, New Haven, and with whom, on the brief, was David S. Maclay, Bridgeport, for appellants (defendants Manway Const. Co., Inc., and Damar Const. Corp.).

Frank W. Estes, Bridgeport, for appellant (defendant Fidelity and Deposit Co. of Maryland).

Morris Apter, Hartford, for appellee (named defendant).

Abraham B. Beiser, Norwalk, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

The plaintiff, Rusco Industries, Inc., brought this action in a single count against the Housing Authority of the city of Hartford, hereinafter referred to as the Housing Authority, the general contractors, Manway Construction Company, Inc., and Damar Construction Corporation, hereinafter referred to as the general contractor, and a surety, Fidelity and Deposit Company of Maryland, hereinafter referred to as Fidelity. Summary judgments were rendered against all the defendants on the issue of liability. After a hearing in damages, judgment for $21,096 was rendered against the general contractor and Fidelity. These two defendants have appealed.

The plaintiff alleged a subcontract with the general contractor to furnish windows and frames in the amount of '$93,346' with payment of $72,260 leaving 'still due and owing the sum of $21,096.00.' The plaintiff alleged that by virtue of its installation of windows and frames the Housing Authority 'has the benefit of the plaintiff's property and has been unjustly enriched thereby to the extent of $21,096.00.' The plaintiff further alleged that Fidelity issued a performance and payment bond as surety to the Housing Authority, that demand for payment of $21,096 was made on all defendants, and that it had not received that sum.

After the defendants had filed their answers and special defenses, the plaintiff moved for summary judgment against all defendants. The plaintiff's affidavit, by its agent, recited that windows and frames had been installed, that on August 23, 1971, no representative of the defendants was on the job, and that it would take about two weeks to finish its part of the job at a cost of about $2000. The general contractor filed a counter affidavit alleging that the prime contract, to which the subcontract and orders were subject, provided for periodic progress payments, that paynents were to be made by the general contractor to the plaintiff under their agreement only to the extent that the general contractor had received payment for the plaintiff's work from the Housing Authority, and that all such obligations by the general contractor to the plaintiff were satisfied. The general contractor's counter affidavit also raised questions concerning the plaintiff's workmanship, that is, 'certain windows installed by plaintiff in the vestibule areas of the project were not installed according to plans and specifications, and there is a claim that certain windows had been installed out of plumb.'

The Housing Authority filed a counter affidavit claiming that it was not unjustly enriched and that it had instituted action against the general contractor for breach of contract and for the costs of correction of defects and completion.

The court denied summary judgment on February 16, 1972. The plaintiff moved to reargue the motion. The court then granted the motion nisi against the general contractor if no pleadings on any issue of law were filed in ten days. The court's memorandum on the reargument of the motion for summary judgment was filed April 11, 1972. The record indicates that the same memorandum was filed again on April 24, 1972, followed by motions by all parties. The Housing Authority filed an additional counter affidavit reciting in detail the claim of defective workmanship on the part of the plaintiff necessitating replacement and repair. On July 10, 1972, the court filed a 'Final Memo on Motion for Summary Judgment.' It is stated there that '(t)o bring this matter to a temporary conclusion, it is the opinion of this court that the summary judgment order already issued should include the defendants, general contractors and the Hartford Housing Authority. It is necessary to ascertain amounts held and owed by each. Plaintiff should apply for a hearing in damages to ascertain amounts due from each defendant.' The judgment dated July 10, 1972, is against only the...