De Santo v. Burkle

• Decision Date: 03 October 1927
• Citation: 106 Conn. 677,138 A. 788
• Court: Connecticut Supreme Court
• Parties: DE SANTO v. BURKLE.

138 A. 788

106 Conn. 677

DE SANTO v. BURKLE.

Supreme Court of Errors of Connecticut.

October 3, 1927

Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.

Action by Michael De Santo against Edward J. Burkle for recovery of the reasonable price of labor and materials furnished and on certain promissory notes. Verdict and judgment for plaintiff and defendant appeals. No error.

George E. Beers and Harry Bernblum, both of New Haven, for appellant.

George W. Crawford, of New Haven, for appellee.

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

BANKS J.

The complaint in this case is in two counts. The first is for labor and materials furnished in the construction of certain sidewalks and other concrete work in connection with the erection by the defendant of an apartment house in New Haven of the reasonable value of $1,200, under a written contract in evidence as Plaintiff's Exhibit A. The second count is upon four notes of the defendant of $300 each, given in payment for the work done under this contract. The defendant, after a general denial, set up that the work in question was performed under an oral contract which included those sidewalks and other concrete work, and also certain work in the construction of a cellar floor; that by the terms of the contract the work was to be done in a workmanlike manner and the materials were to be of the best quality; that, upon completion of the work to the satisfaction of the defendant, the latter was to pay the plaintiff $2,400; and that the defendant had paid on account $1,200. The defendant alleged that the work had not been completed satisfactorily; that it was not performed in a workmanlike manner; that the materials were not of the best; and in a counterclaim sought to recover damages for the failure of the plaintiff to perform the work according to the contract. It appears from the finding that upon the trial the defendant did not deny that the work called for by Exhibit A had been done to the satisfaction of the defendant and that the notes given by him in payment therefor were owned by the plaintiff and were due and unpaid. This left as the real controversy the issue raised by the defendant's affirmative answer and counterclaim, and the court correctly charged the jury that the burden of proof upon this issue rested on the defendant.

It was defendant's claim that the cellar floor was defective, and that, although that work was completed and paid for before the execution of the sidewalk contract, Exhibit A, he was entitled to set off against the notes given under that contract the damages he claimed to have suffered by reason of the defective work in the cellar. Upon cross-examination the plaintiff was inquired of with regard to the work in the cellar, objection was made, and the inquiries were excluded. These rulings are assigned as error. Later, as a part of the defendant's case on his counterclaim, the plaintiff was fully examined upon the subject of the work in the cellar. The defendant's present contention is that the jury must have been confused by the action of the trial court in reversing its rulings. There is nothing in the record to indicate that the rulings of the court would tend to produce, or actually did produce, such a result.

The assignments chiefly stressed in defendant's brief and argument are those claiming error in the charge as to the nature and legal effect of the written contract, Exhibit A. The court told the jury that Exhibit A upon which the action was brought was a complete contract, describing the work to be done by the contractor and the compensation to be paid therefor; that it did not relate to the contruction work in the cellar; that the defendant did not controvert the claim of the plaintiff that Exhibit A had been entered into, or that the work called for under it had been performed; that the jury would probably have no difficulty in disposing of the question whether the plaintiff had done the work, or that the plaintiff was the owner of the notes, and that they had not been paid, and that no evidence had been offered to controvert these claims, and, further, that the defendant's claim was that certain work which the plaintiff had done " on another and on a prior occasion" had damaged the defendant, and that " it was not in accordance with the contract which provided for that work." Referring to the work on...