Town of Milford v. O'Neil Bros., Inc.
| Decision Date | 22 July 1940 |
| Docket Number | File 56798 |
| Citation | 8 Conn.Supp. 403 |
| Parties | TOWN OF MILFORD v. O'NEIL BROS., INC. ET AL. |
| Court | Connecticut Superior Court |
This is an action by a town against a contractor and its surety for damages resulting from claimed breaches of two contracts for the construction of sewers. The plaintiff town claimed that the sewer systems built under the contracts infiltrated in excess of the limits stated in the contracts; that the contractor failed properly to perform the work of backfilling trenches; and that a number of manhole seats and covers did not conform to specifications. The defendant contractor and its surety set forth defenses and in addition the contractor interposed counterclaims arising out of claimed interference with the performance of the contracts, the performance of work not required by the contracts, and elimination of work from the contracts.
The contracts provided that the pipe lines should be tested by measuring the infiltration; that the infiltration should not exceed a stated rate; and that the contractor should excavate and uncover such portions of the lines as gave indication of leakage and repair or rebuild those portions in full accordance with the specifications until the completed systems met the requirements for tightness specified. The infiltration exceeded the stated rate and measures taken by the contractor at the direction of the town's engineers did not correct that condition. The drawings and specifications for the sewer systems were prepared by the town's engineers.
The contractor did not warrant the sufficiency of the drawings and specifications to achieve systems of sewers of the tightness desired. The contracts contained no express warranty of that nature, and such a warranty could not be implied from the contractor's undertaking merely to furnish materials of certain kinds and labor to put them together, as required by the drawings, specifications and directions of the resident engineer, in a workmanlike manner.
Where a contract contains a guaranty or warranty, express or implied that a builder's work will be sufficient for a particular purpose or to accomplish a certain result, the risk of accomplishing such purpose or result is on the builder, and there is no substantial performance unless the work is sufficient for such purpose or accomplishes such result. But where he agrees to build according to certain specifications and guarantees the sufficiency of the work he is not required to do more than the specifications call for, and there is no implied agreement on the part of the builder that the work when completed, according to plans and specifications, will be safe and fit for the purposes intended.
Even if, as claimed, the town waived the right to test the systems for infiltration and accepted the contractor's work by directing the installation of house laterals against the protests of the contractor before the systems had been tested for infiltration, the contractor would not be absolved from liability to answer in damages for defects caused by deficiencies of quality of material or workmanship.
Waiver of complete performance by acceptance of the work did not arise from the circumstance of the execution of certificates of completion for the purpose of enabling the Public Works Administration to make payment to the town and the conduct of the town's resident engineer in stating in conversation that he was satisfied with the results of the tests for infiltration, where the certificates did not say that as between the contractor and town the work had been accepted and where at the time of the occurrence of such events the resident engineer was earnestly and consistently urging the contractor to make repairs and complete work, failing the accomplishment of which he did not consider that the town could be justified in accepting the sewer systems.
The acceptance of the sewer systems by the town under such circumstances as to indicate waiver of defects of design materials or workmanship was established by proof that following recommendation of the town's engineers in good faith that the systems be accepted after the completion of certain work, which was later performed, the town made final payment to the contractor under one of the two contracts, and the board of sewer commissioners authorized property owners to connect into the systems.
No inference arose from the fact that the systems leaked to an extent greatly in excess of allowable tolerances that the contractor was at fault, and, moreover, the evidence demonstrated that the leakage was not the result of defective materials or faulty workmanship.
Quaere, whether those provisions of the contracts which required the contractor, in the event the sewers were found to infiltrate beyond the limit stated, to repair or rebuild portions of the lines, were binding on the contractor, since such provisions imposed on the contractor an obligation in excess of that described in the contracts and therefore inconsistent with the contractual intent.
A claim for damages for alleged improper backfilling of trenches was not supported by proof merely of the sinking of the highway at the location of the trenches, since the presence of sinkings was equally compatible with results occurring despite utmost care in performance of the work of backfilling.
Certain seats and covers for manholes did not conform to specifications in that they were not machined to true plane surface. The practical difference in machined and unmachined seats and covers is that the latter produce noise when vehicles pass over them, but this may be corrected by the application of a substance to fill in the rough surface. The town was not entitled to recovery on the ground that a nuisance had been produced, where it neither alleged nor proved that it had been subjected to liability on that account. The court would not apply to the claim that measure of damages' suggested by the town, which was founded upon partial demolition of manhole structures and rebuilding with planed surface seats and flanges, since that was so far out of proportion to the detriment suffered as to be inequitable. In such a situation the town would be entitled to nominal damages only. However, the proof established acceptance by the town's engineer of the seats and covers furnished on the contractor's agreement to fit pads on the underside of the unmachined covers.
Provisions of the contracts limiting liability for defects in work or material to those appearing within certain periods stipulated did not purport to limit the time during which an action might be commenced to enforce liability for such defects. Hence, the defendant surety was not discharged from liability because the town did not give notice to it of alleged defective construction of the sewers until after the expiration of such periods; nor was the surety discharged because of the failure of the town to give reasonable notice of defective construction, thereby depriving the surety of an opportunity to effect necessary repairs at lesser expense than could be made on the date when notice was finally given.
The denial by the town's first selectman of permission to the contractor to operate a gate in a dam located in a river across which the contractor was required to lay pipes until the end of the summer season, by reason of which the contractor was delayed, was in violation of that term of the specifications granting to the contractor the right to operate the gate, notwithstanding that the selectman was motivated by considerations of public health. The town health officer was the sole official vested with authority to determine whether the draining of the river would be likely to injuriously affect public health. The fact that the town health officer might properly have prevented the draining of the river is not pertinent, where the health officer did not act.
Where an owner breaches a contract by hindering or delaying its performance on the part of the contractor and the contractor later resumes and completes the performance, he thereby waives the breach but is nevertheless entitled to be compensated for any damage which he has sustained by reason of such breach.
The claim, not being one for extras, was not affected by provisions of the contracts providing that by acceptance of final payment, the contractor released the town from " all claims and liability to the contractor for all things done or furnished in connection with this work and from every act and neglect of the owner and others relating to and arising out of this work."
Losses sustained by the contractor by reason of the refusal of the first selectman to permit the river to be drained during the summer season, which necessitated the laying of pipes across the river at a season which proved to be less favorable in that rainfall was heavy and waters higher and more turbulent were not a natural result of the breach of contract involved nor a special circumstance within the contemplation of the parties at the time the contracts were made, and hence were not recoverable.
An order of the town's engineer, made for the purpose of minimizing interference with travel, by which the contractor was compelled to construct a section of the sewer lines from high to low elevation, in violation of good engineering practice and at greater expense than if the lines were laid against an ascending grade, was in violation of the contracts. The additional work did not constitute an " extra." The order was not warranted by a provision that " In the performance of the work, the Contractor shall abide by all orders, directions and requirements of the Engineer and shall perform all work to the satisfaction of the Engineer and at such times and places, by such methods and in such manner...
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