Scribner v. O'Brien, Inc.

Decision Date26 August 1975
Citation169 Conn. 389,363 A.2d 160
CourtConnecticut Supreme Court
PartiesCharles F. SCRIBNER et al. v. O'BRIEN, INC., et al.

Melvin J. Silverman, Norwalk, for appellants (defendants).

James R. Fogarty, Jr., Stamford, with whom, on the brief, was James J. Huron, Stamford, for appellees (plaintiffs).


BOGDANSKI, Associate Justice.

The plaintiffs brought this action to recover damages for the cost of repairing a drainage problem and other defects allegedly created by the defendants during construction of their new dwelling house. The action, in three counts-breach of express warranty, negligence, and breach of implied warranty-was referred to a referee, who, exercising the powers of the Superior Court, rendered judgment for the plaintiffs on all three counts. The defendants have appealed, assigning error in the court's refusal to find facts claimed to be admitted or undisputed, in finding facts without evidence, in the conclusions reached, and in rulings on evidence.

The defendants' attack on the finding is all-encompassing. It is claimed that the court refused to find twenty-eight paragraphs of the defendants' draft finding which were 'admitted or undisputed'; that twenty-five of the facts found are not supported by the evidence; and that not one of the trial court's fourteen conclusions finds support in the subordinate facts. We have repeatedly stated that such wholesale attacks rarely produce results, tend to cloud the real issues, and in themselves cast doubts on the appellants' claims. See, e.g., Dick v. Dick, 167 Conn. 210, 212, 355 A.2d 110; John Meyer of Norwich, Inc. v. Old Colony Transportation Co., 164 Conn. 633, 634, 325 A.2d 286; State v. Miselis, 164 Conn. 110, 114, 318 A.2d 102; Branford Sewer Authority v. Williams, 159 Conn. 421, 424, 270 A.2d 546. We have, nevertheless, scrutinized the assignment of errors and have determined that only two corrections in the finding of fact are warranted. Those will be discussed in the opinion. The remaining requested additions are either not material to the issues presented on appeal or are not admitted or undisputed facts; Starkel v. Edward Balf Co., 142 Conn. 336, 337, 114 A.2d 199; Practice Book § 628(a); and the remaining findings sought to be deleted find ample support in the evidence printed in the well-arranged appendix to the plaintiffs' brief. 1 Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 649 n. 1, 353 A.2d 714; Practice Book § 718. Facts will not be deleted from the finding if they are either directly supported by the evidence or are based on inferences reasonably drawn therefrom. Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79.

The finding discloses that in July, 1967, the plaintiffs first viewed the subject property. At that time, no house had been constructed, although there was an excavation and possibly a poured foundation on the lot. There was a 'for sale' sign on the property which informed prospective purchasers that they should contact a certain real estate agent. The plaintiffs telephoned that real estate agent who arranged an appointment with the defendant O'Brien. They met with O'Brien on July 28, 1967, and discussed certain plans for the erection of a dwelling on the subject land. At the conclusion of that meeting, the plaintiff Charles Scribner executed an instrument entitled 'Binder of Sale Form' which purported to be an agreement between Scribner and O'Brien, individually, wherein the former agreed to buy and the latter agreed to sell the property. Scribner tendered $300 as a 'binder' for the property and O'Brien gave him a receipt for the money.

In August of 1967, the plaintiffs entered into a bilateral contract to purchase the property. That contract purported to be an agreement between both plaintiffs, described as 'buyer,' and 'O'Brien, Inc., a Connecticut corporation with its principal place of business in the town of Westport, . . . acting herein by Harry O'Brien, its president, and Harry O'Brien of . . . Westport.' Both defendants were described as 'seller,' according to the terms of the contract. That contract also provided that the 'seller' would erect a house in accordance with specified plans and provide, among other things, a crushed stone driveway. The trial court found that the defendant O'Brien signed the contract over a signature line marked 'seller.' We must also add, however, a requested draft finding that the name 'Harry O'Brien,' which was added to the contract with a space for his personal signature, was stricken and not signed. Our examination of the contract for sale reveals that the signature of O'Brien, which the trial court found to be over the line marked 'seller' was also under a line marked 'O'Brien, Inc.' Thus, the signing by O'Brien was not in his individual capacity; rather, it was in his capacity as president of the named defendant. 2 The contract included the following warranty: 'The Seller agrees that it will, upon written request within twelve months from the date of closing of title, inspect the dwelling as promptly as possible and, where shown by such inspection to require adjustment by reason of defects in workmanship or material, the Seller will make reasonable and necessary repairs or adjustments without cost to the Buyer.' 3

The plaintiffs subsequently acquired title to the property and took possession of the then completed house in late October, 1967. At that time gravel had been placed on the driveway and it looked 'lovely' to the plaintiffs. Within one month the plaintiffs began to notice surface water, the property became very muddy in the rear, and the 170 foot gravel driveway began to sink. By December of 1967, the water problem was so severe that the plaintiffs' car sank in the driveway up to its hubcaps. The driveway became completely unusable, with the gravel thereon sinking below the surface of the mud. Several times each week, the plaintiffs had to pump water out of their garage, which, in any event, could no longer be used because of the condition of the driveway. The plaintiffs also had to install wooden planks from their front porch over to their neighbor's driveway in order to gain access to the home.

In the spring of 1968, the plaintiffs notified the defendant O'Brien of the critical mud and water condition on their property. O'Brien inspected the property but disclaimed liability, claiming that the water problem was a 'natural occurrence.' From midsummer of 1968 to November, 1968, the water condition dried up, but it reappeared in the winter of 1968-1969, and once again the driveway and garage were rendered totally unusable.

The trial court further found that O'Brien, who was president of the named defendant, acquired the subject property in his own name in May of 1967; that he supervised the construction of the dwelling; that he was present at the property on a daily basis from the beginning to the end of that construction; and that the named defendant was, at all revelant times, engaged in the business of constructing homes. During the course of that construction, the defendants encountered a water problem which forced them to modify the plans for the house, to use pumps to remove water from the excavation site, and to dig a channel from the foundation of the house to the public highway. And, in the course of excavating about 250 cubic yards of topsoil and subsoil, the property was so wet that the defendants were, at times, unable to use heavy construction machinery. The excavation and removal of the topsoil and subsoil by agents of the defendant O'Brien lowered the grade level of the property so that it became lower than the level of abutting land.

In the fall of 1968, the plaintiffs sought the assistance of Neil Callahan, an excavating contractor and builder with twenty-five years of experience. Callahan estimated that the repair work necessary to remedy the water problem would cost $1900. He subsequently installed drainage pipes around the plaintiffs' house and down their driveway and replaced the gravel in the driveway at a total cost of $1992.62. The plaintiffs paid the cost of those repairs and never again encountered any trouble with water on the property. The trial court found that the cost of those repairs was reasonable.

During his work on the property, Callahan observed that the water causing the problem was running out of the sides of the property, out of the bank in the back of the lot and out of the land itself. There was also a full flow of water onto the plaintiffs' land from drainage pipes which may have come from abutting property. Callahan testified that it was unusual to have the amount of water found on the plaintiffs' lot and that it was his opinion that the defendants should have provided a permanent drainage system at the time of the original construction of the dwelling. The trial court accepted that opinion in its finding of fact.

On the basis of the foregoing, the trial court concluded that the water problem was caused by the defendants' excavation of the property; 4 that the defendants had knowledge of the presence of excess water on the property during the excavation of the property and construction of the dwelling; and that the defendants' failure to install a drainage system around the dwelling and garage resulted in the excessive accumulation of water on the driveway. The trial court also concluded that the defendant O'Brien was personally liable under the terms of the August, 1967 contract; that he individually owned the property from May 9, 1967, until its transfer to the plaintiffs on October 23, 1967; and that both defendants obligated themselves under the terms of the July, 1967 'binder' and the August, 1967 contract. The issues were then found for the plaintiffs against both defendants with the ultimate conclusions that the defendants had breached their express warranty to make reasonable and...

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