Therrien v. Safeguard Mfg. Co.
| Decision Date | 11 March 1980 |
| Citation | 429 A.2d 808,180 Conn. 91 |
| Court | Connecticut Supreme Court |
| Parties | Paul THERRIEN v. SAFEGUARD MANUFACTURING COMPANY. |
John W. Lemega, Hartford, with whom were Timothy W. Donahue, Hartford, and, on the brief, Thomas J. Hagarty, Hartford, for appellant (defendant, third-party plaintiff).
Robert D. McGann, Hartford, for appellee (third-party defendant Torin Corp.).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.
The sole issue on this appeal is whether a buyer of goods has an implied duty to protect a manufacturer-seller from liability for injuries sustained by one of the buyer's employees. This suit was initiated by a complaint filed by the plaintiff Paul Therrien against the defendant Safeguard Manufacturing Company alleging negligence, breach of warranty and strict liability arising out of the defendant's sale of a defective pullout guard for a machine press. The defendant thereupon filed a third-party complaint against the third-party defendant Torin Corporation alleging that Torin was liable to Safeguard for any loss sustained by it as a result of the plaintiff's injury. The trial court, Missal, J., granted Torin's motion to strike the third-party complaint and rendered judgment for Torin when Safeguard elected not to plead over. Safeguard is here appealing from the judgment, 35 Conn.Sup. 268, 408 A.2d 73.
On review of the propriety of a dismissal of a complaint pursuant to a motion to strike, the facts are deemed to be those alleged in the complaint, here the cross-complaint, construed in the manner most favorable to the pleader. Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980); Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973); Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557, 227 A.2d 418 (1967). The cross-complaint alleges that Safeguard sold a Model J Pullout Guard to Torin on December 2, 1971. At the time of the sale, Safeguard informed Torin, and instructed Torin's agents and employees, with regard to adjustments, inspections, and maintenance required by the pullout guard. The cross-complaint further alleged that as a result of the sale under these circumstances, Torin was under a duty to Safeguard to control the use of the pullout guard and to make certain that it was properly adjusted, inspected, and maintained, and was bound to indemnify Safeguard for any losses or damages incurred because of Torin's breach of this obligation. The complaint does not allege an express contract of indemnification. Safeguard in its brief, and on oral argument, characterized Torin's duty as one arising out of an implied contractual obligation.
The difficulty with Safeguard's claim of implied contract is the lack of correspondence between the factual circumstances alleged in the cross-complaint and the duty said to arise therefrom. The claim of breach of an implied contract could be read to allege failure to perform duties imposed either by a contract implied in fact or a contract implied in law, also often called a quasi-contract. See Restatement (Second), Contracts § 5, comment (1973); 1 Corbin, Contracts §§ 18, 19 (1963); Calamari & Perillo, Law of Contracts § 1-12 (2d Ed. 1977). Neither form of implied contract is supportable by the allegations of this cross-complaint.
A contract implied in fact, like an express contract, depends on actual agreement; Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957); Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679 (1955); Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 (1930); Skelly v. Bristol Savings Bank, 63 Conn. 83, 87, 26 A. 474 (1893); yet the cross-complaint nowhere alleges that Torin agreed, either by words or action or conduct, to undertake any...
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