Sasso v. K. G. & G. Realty & Const. Co.

• Decision Date: 01 March 1923
• Citation: 98 Conn. 571,120 A. 158
• Parties: SASSO v. K. G. & G. REALTY & CONSTRUCTION CO. ET AL.
• Court: Connecticut Supreme Court

120 A. 158

98 Conn. 571

SASSO v. K. G. & G. REALTY & CONSTRUCTION CO. ET AL.

Supreme Court of Errors of Connecticut.

March 1, 1923

Appeal from Superior Court, New Haven County; George E. Hinman Judge.

Action to foreclose mechanic's lien by A. N. Sasso against the K. G. & G. Realty & Construction Company and others. From judgment for plaintiff, the defendants appeal. Affirmed.

Louis Sachs and Joseph I. Sachs, both of New Haven, for appellant K. G. & G. Realty & Construction Co.

Philip Pond and Raymond E. Baldwin, both of New Haven, for appellee.

CURTIS, J.

The finding discloses that in February, 1920, the defendants were erecting an apartment house in New Haven, and on February 10 1920, entered into a contract with the plaintiff, whereby he agreed to furnish all materials and labor necessary to do all the marble and tile work in the building according to the architect's plans, except as provided in the contract for the sum of $7,800. The contract provided all work to be done in Italian marble, or equal quality, samples to be submitted for owner's approval, and work to commence when the defendants notified the plaintiff to begin and to proceed continuously until completed.

Before the execution of this contract, the plaintiff, in anticipation of securing the contract, had ordered from a tile company on February 9, 1920, tile suitable and necessary to complete the building according to the plans. From February 9 until June 5, 1920, the plaintiff made all reasonable efforts to secure the delivery of tile from that company to perform his contract, but was unable to secure any tile or get a definite shipping date for any tile, and was finally informed on June 5, 1920, by the tile company that they could not handle his order of February 9th. The plaintiff informed the defendants of these efforts to secure tile and of the results; the defendants urged him to get tile elsewhere and told him that he could get tile in New York City.

From and after February 10, 1920, tile advanced rapidly in price, and it became exceedingly difficult to purchase tile at any price, and such as was obtainable was of inferior quality.

The plaintiff informed the defendant of the scarcity of tile, of its advanced price and inferior quality, and that tile could be had for immediate delivery only upon payment of cash therefor, and that he could not proceed with the completion of his work unless defendant would pay, in addition to the contract price, the difference between the cost of tile as originally figured in making up the contract price, which cost so figured was $2,905.83, and the cost of tile that could now be secured for immediate delivery, and would advance sufficient moneys to enable plaintiff to pay cash for such tile.

On or about May 1, 1920, the building was ready for the installation of tile, and defendants were very anxious to have its building completed as soon as possible, and as an inducement to the plaintiff to continue, expedite, and complete the performance of the contract, defendants agreed with plaintiff upon a modification of the original contract to the effect that the defendants would pay the plaintiff, in addition to the contract price, the difference between the cost of tile as originally figured in making up the contract price and the cost of tile that could now be secured for immediate delivery and should be so obtained for use on the job, and that the defendants would advance, from time to time, the cost of such tile as were needed in order that cash payment could be made by the plaintiff.

Pursuant to this agreement, the plaintiff and his agents, aided by the defendants and their agents, purchased in New York tile to be used on the job, and plaintiff proceeded with the performance of the contract as modified.

On August 4, 1920, the plaintiff wrote to the defendants requesting a confirmation in writing of these modifications. The defendants on August 10, 1920, replied in these terms:

" On February 10, 1920, you entered into a contract with our company to perform certain work and furnish materials for our building at numbers 516-518 Orange street, this city. You have been delayed in your work on account of the scarcity of tile and in the meantime the price of materials has advanced.

We are, therefore, willing in order to assist you in completing your contract, to agree to pay to you the difference in the cost of materials over and above the prices submitted in a schedule that you sent us. This increase is to be paid to you upon your finishing your work within two weeks from this date.

We will do our best to help you obtain material for your work."

After August 10, 1920, and until September 4, 1920, the defendants continued to pay for tile purchased, up to and including September 24, 1920, for use in the defendants' building. The amount so paid for tile was $2,375.59 in excess of the cost of tile as originally figured by the plaintiff in making up the contract price. The plaintiff fully performed and completed the modified contract before October 30, 1920. The tile used was of a quality inferior to that originally contemplated by the parties, and the defendants with knowledge of this fact approved of and accepted such tile. The original contract price, together with amounts due the plaintiff for extra work which was undisputed, amounted to $8,823.53. The court found that the additional sum of $2,375.59 was due the plaintiff under the defendants' agreement in the modified contract to pay the excess of the actual cost of tile over the sum the plaintiff figured as the cost of tile in making up his contract price. After deducting from the sum of $11,199.17 found due the plaintiff the payments which it is found...