Thermoglaze, Inc. v. Morningside Gardens Co.

• Decision Date: 21 February 1991
• Docket Number: No. 8846,8846
• Citation: 583 A.2d 1331,23 Conn.App. 741
• Court: Connecticut Court of Appeals
• Parties: THERMOGLAZE, INC. v. MORNINGSIDE GARDENS COMPANY.

Page 1331

583 A.2d 1331

23 Conn.App. 741

THERMOGLAZE, INC. v. MORNINGSIDE GARDENS COMPANY.

No. 8846.

Appellate Court of Connecticut.

Argued Nov. 7, 1990.

Decided Jan. 15, 1991.

Certification Denied Feb. 21, 1991.

Gina A. Pasquini, with whom, on the brief, was Gaetano Ferro, for appellant (defendant).

Eric L. Reinken, for appellee (plaintiff).

Before DUPONT, C.J., and SPALLONE and LAVERY, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment of the trial court accepting the report of the attorney trial referee. On appeal, the defendant claims that the attorney trial referee improperly found facts contrary to the evidence presented and improperly concluded that an alleged amendment to the parties' contract was unsupported by consideration. We disagree with the defendant and affirm the judgment of the trial court.

Evidence presented to the attorney trial referee supports the following facts. The plaintiff, Thermoglaze, Inc., a corporation in the business of furnishing and installing windows, and the defendant, Morningside Gardens Company, the owner of an apartment complex, entered into a written contract that provided, inter alia, that the plaintiff, in consideration of the payment of $88,960, would furnish and install 444 windows in the apartment complex. The contract contained a provision leaving the selection of color (either bronze or white) open, and provided that the defendant would exercise its choice so that the plaintiff could order the appropriate windows from its manufacturers. Lewis McClaine, the plaintiff's president, signed the contract on July 9, 1986. Frank Alebrande the defendant's representative, signed the contract on August 19, 1986, without making a decision as to the color of the windows. Alebrande stated that he would make a decision as to the window color at the time he paid the first installment due under the contract. When the first installment was paid, three or four weeks later, Alebrande specified white windows, which the plaintiff ordered, delivered to the job site, and, at the behest of and with the permission of Alebrande, stored in the office of the apartment complex maintenance supervisor. The plaintiff's crew took three to four hours to unload and to store the windows. The defendant's maintenance man, his assistant, and the manager of the complex were present during this process. The plaintiff stored the windows on the site from December 15, 1986, to January 5, 1987, when installation commenced. During that time, although various matters were discussed by the parties, the defendant never lodged a complaint with regard to the color of the windows.

The plaintiff began installing the windows on January 5, 1987, without any objection from the defendant. Over a two week period, 195 windows were installed, after which the defendant's representative advised the plaintiff that the owner's wife was unhappy with the white color and that the defendant wanted to change to bronze. The defendant contended that it had ordered bronze windows in the first instance, and that the plaintiff mistakenly had ordered and proceeded to install white windows. The defendant claimed that upon observing the installation of white windows the defendant's representative promptly told the plaintiff to cease installation.

The work stopped upon the installation of 195 windows and the parties thereafter negotiated in an attempt to resolve the resultant impasse. On January 16, 1987, McClaine signed and delivered a letter stating that the plaintiff would replace the white windows with bronze windows. On January 17, 1987, the plaintiff's president and the defendant's representative signed a memorandum stating that the plaintiff would install bronze windows and bronze exterior trim at no additional cost to the defendant and further stated: "This is an amendment to the contract signed on 8/19/89."

McClaine testified that he had agreed to the change to bronze windows in exchange for the defendant's promise to make up the substantial financial loss to the plaintiff on the contract in question by awarding lucrative contracts on other properties controlled by the defendant. The defendant denied making any such promises and avers that the plaintiff was merely correcting its error in ordering and installing the wrong color windows.

Bronze windows were never ordered by the plaintiff, nor did it install any additional windows at the defendant's complex. The plaintiff attributes this to the defendant's refusal, despite repeated requests, to commit itself specifically and firmly to future work contracts, without which the plaintiff was unwilling to undertake the substantial expense of ordering, substituting and installing new bronze windows.

The attorney trial referee, after considering all the evidence, stated, "the trial referee has accepted in substance the testimony of plaintiffs' witness, Mr. McClaine. The referee has paid particular attention to the witnesses...