Soule v. Borelli

• Decision Date: 03 March 1908
• Citation: 68 A. 979,80 Conn. 392
• Court: Connecticut Supreme Court
• Parties: SOULE et al. v. BORELLI et al.

68 A. 979

80 Conn. 392

SOULE et al.

v. BORELLI et al.

Supreme Court of Errors of Connecticut.

March 3, 1908.

Appeal from Superior Court, Litchfield County; Ralph Wheeler, Judge.

Action to foreclose a mechanic's lien by Turney Soule and another against Andrew Borelli, administrator, and others. Plaintiffs had judgment, and defendants appeal. No error.

For many years prior to January 1, 1904, the plaintiffs, Turney Soule and George H. Lines, as sole copartners, under the name of T. Soule & Co., hereinafter referred to as Soule & Co., were engaged in business in New Milford as builders and dealers in lumber, hardware, and builders' material. D. E. Soule, the brother of Turney Soule, had for some years prior to April, 1904, been employed by the copartnership as foreman of construction. In that capacity be was accustomed to hire and have charge of the men, and to select and order the materials required. Immediately after the fire which on May 2, 1902, destroyed nearly all the business portion of New Milford, including a hotel owned, as was the land on which it stood, by Mrs. Borelli, the wife of the defendant Andrew Borelli, it was determined by Soule & Co. that they would thereafter take construction work only upon commission, and the agreement with D. E. Soule was so modified that thereafter his compensation was $3 per day of nine hours, and one-half of the commission received by the firm upon carpenters employed. He was at no time a member of the partnership, and has no other connection with the construction of the building hereafter referred to than as foreman of Soule & Co. It was not within the scope of his duties to make any agreement on behalf of his employer in regard to raising money for payments on its bill, or to make statements in relation thereto, and he had no authority to do so, and he made no statement or agreement in relation thereto as its agent or representative. A few days after the fire Mrs. Borelli, accompanied by her husband, to whom she was married in 1879, drove into the lumber yard of Soule & Co., and there had an interview with Mr. Lines, the junior partner. They asked Mr. Lines if his firm could promise them help to rebuild the destroyed hotel. Lines told her that, subject to other buildings that had to come in ahead, they would do so. Mrs. Borelli asked upon what terms, and how. Lines replied that they had decided to take no jobs except upon a 10 per cent. commission basis; that is, that they would furnish the labor and materials at cost, and add thereto 10 per cent. commission. Mrs. Borelli thereupon accepted the proposition of Lines to do the work upon these terms, telling him to go ahead as soon as they could.

On June 10, 1902, the firm, pursuant to this agreement and direction, began to furnish labor and materials in the erection of the building, and continued uninterruptedly to do so until it was completed on January 5, 1903. The last charge upon the account is under date of January 10, 1903, when the time cards of the men employed were turned in and the men paid. D. E. Soule acted throughout as the superintendent of the work, hired and had charge of the carpenters employed, and selected all materials out of the stock of Soule & Co. in so far as it was in stock, and, when not in stock, procured it elsewhere in the name of the firm. The account for the job was kept upon the books of the firm and covered about eight ledger pages. The balance struck upon this account, as it stood upon the books after the work was completed, showed an indebtedness to Soule & Co. of $2,612.82, and on March 4, 1903, a lien was filed upon the property for said sum in favor of the plaintiffs, described as copartners under the name and style of T. Soule & Co., their heirs, and assigns. The account for whose balance struck as aforesaid a lien was filed contained a few small items inadvertently there entered which were properly chargeable to Mr. Borelli upon some other account than for the building in question. It also included three items which had been twice charged by mistake, a few clerical errors, and certain items which the court found were overcharges. Concerning the latter class of entries, the court finds that they were made under a fair claim of right, in good faith, and in the belief that they were justified under the agreement Concerning all of the improper entries and errors the finding is that they resulted from claims honestly made, mistakes, or clerical errors, and that none of them were made intentionally for the purpose of overcharging or deceiving or defrauding the Borellis or the mortgagees. August 11, 1902, Mr. and Mrs. Borelli mortgaged the premises in question to J. Le Hoy Buck, conservator, to secure a note of $5,000. Buck having died, the defendant Adeline Buck succeeded him in the execution of said trust.

October 10, 1902, the Borellis gave a second mortgage of said premises to the defendant Bennitt to secure a note for the like sum of $5,000. This note and mortgage were given for the purpose of raising money to pay hills in connection with the construction of said building, including that of Soule & Co. Of the sum thus' raised $3,500 was paid to Soule & Co. by check sent by the hand of D. E. Soule, who told one of the partners the source from which the Borellis had obtained it. The firm had nothing to do with securing the loan, and had no other knowledge of the transaction than that conveyed to them by D. E. Soule as aforesaid. Bennitt knew that the building was being erected and that Soule & Co. were erecting it. He made no inquiries of the firm in relation to the matter. This payment of $3,500, made on October 11, 1902, when entered upon Soule & Co.'s books, made the credit charges in the Borelli account exceed the debt charges then actually made upon the books, although no balance was then, or at any time before the completion of the work, struck upon them. At this time considerable material had been contracted for by Soule & Co., which was soon after paid for. furnished, and charged. The material and labor actually furnished after November 0, 1902, together with the commission on the same, amounted to more than the sum found due upon the completion of the work. The erection of the building increased the value of Mrs. Borelli's lot very largely, and was beneficial to her in her business there carried on by her. No notice of an intention to claim a lien was ever given by Soule & Co. to either of the Borellis or to either of the other defendants. Mrs. Borelli died September 8, 1904, possessed of the premises in suit, and her husband was duly appointed administrator of her estate. The account in question was presented to said administrator, and no notice of disallowance has been given. December 31, 1903. the firm of T. Soule & Co. was dissolved; Turney Soule conveying to his son all his interest in the partnership property, excepting only the Borelli account and lien. Concerning this asset of the firm it was orally agreed between the two partners, the plaintiffs, that they would retain and hold jointly the account and lien. This they have continued to do and they are now the bona fide holders thereof. No written assignment of the claim or lien was made. Turney Soule and George H. Lines are the plaintiffs, and Andrew Borelli in his individual capacity and as administrator of the estate of his wife, and the two mortgagees, are made defendants....