Tryon v. White & Corbin Co.

• Decision Date: 30 June 1892
• Citation: 62 Conn. 161,25 A. 712
• Court: Connecticut Supreme Court
• Parties: TRYON v. WHITE & CORBIN CO.

25 A. 712

62 Conn. 161

TRYON

v. WHITE & CORBIN CO.

Supreme Court of Errors of Connecticut.

June 30, 1892.

Appeal from superior court, Tolland county; Fenn, Judge.

Action by Watson Tryon against the White & Corbin Company for extra work and for materials furnished for a building on which plaintiff was engaged as subcontractor. Judgment for plaintiff. Defendant appeals. Affirmed.

A. P. Hyde and C. Phelps, for appellant.

C. H. Briscoe and J. W. Johnson, for appellee.

ROBINSON, J. The defendant is a corporation with three stockholders, White, Corbin, and Prescott, and these three stockholders make up the board of direction. The plaintiff is a mason and builder, and was engaged as a subcontractor to do certain work and furnish certain materials in his line in the alteration of the factory buildings of the defendant, and in the erection of a picker house for the defendant; the entire job having been let to one Arnold as the principal contractor. The plaintiff, in doing the work and furnishing the materials essential to his part of the work, claimed that he furnished extra labor and extra materials, for which he was entitled to extra compensation, and this suit was brought by him against the defendant to recover such extra compensation. It was tried to the jury, and a verdict was returned for the plaintiff to recover $1,317 and costs.

The defendant has appealed to this court for claimed errors in the admission of testimony and in the charge of the court. The defendant sets up 10 reasons of appeal, hut the second and third subdivisions of the first reason of appeal are the most noticeable, and to my mind the most serious errors assigned in the case. They are those which are claimed to have arisen in the admission against the defendant's objection of the declarations of Corbin and Arnold to Tryon touching the matter of the claimed extra work. Mr. Corbin was one of the directors of the defendant corporation, and, it appears, had taken some part in the matter of arranging the location of the picker house hereinafter referred to, and was claimed to be in fact the particular officer who made the last change in its location. Mr. Tryon was permitted by the court to testify that, after he found that the excavation necessary for a firm foundation for the picker house in its changed location required a greater depth than was shown by the plan, he went to see Mr. Prescott, one of the other directors, who was also the treasurer and general manager of the company, about this matter, and informed him that, in view of this change, very much more stone work would be required and a larger amount of stock would be necessary to complete the work, and that he should expect more pay; but that Mr. Prescott refused to pay for extras; and that he, Tryon, thereupon informed Prescott that he should be obliged to stop the work, and that he could not give the company that amount of extra work, and that Prescott thereupon told him that he could stop work, and that he, Prescott, would not pay him for any extras. That directly after this Tryon went to see Corbin, and told him how the matter stood, and what Prescott had said; and Tryon was allowed, against objection, to testify that Corbin made reply to him that, if the facts were as stated by him,—if there was extra work,—he ought to have pay for it. That they were intending to have a meeting of the directors of the company at noon that day, and he would then bring the matter up, and would send word by Arnold, the principal contractor, to him, Tryon, of the result; and that Corbin further said that he did not want the work stopped, and then and there told him to go ahead, and the company would pay. The plaintiff, Tryon, was also permitted, against objection, to testify that, after having this conversation with Corbin, and at the hour named, Arnold went to the office of the defendant, and returned from that place to Tryon, and stated to him that the company would pay him for the extra work, and that he was to go ahead. All this was denied by the defendant, but whether it is true or false is not the question in this case. The jury had the right and the power to find it to be true. The only question is, was the testimony admissible in any view of the case, and did it legitimately and properly tend to establish any obligation on the part of this company to pay for this extra work and material?

Supposing it to be true that Corbin did have this talk with Tryon, and did tell Tryon that the directors were to have a meeting that day at noon, and that he, as one of those directors in that meeting, would bring up the matter of this claimed extra work and extra pay, and that he would send word to him by Arnold of the result; and suppose Arnold did in fact go to the company's office at the hour named, and did in fact come to Tryon from that office on that day and hour and say to him: "The company will pay you for the extra work. You are to go ahead,"—supposing all this to be true, are there not other facts and circumstances in this case which, taken in connection with the above, would create some kind of an obligation on the part of the defendant to pay the plaintiff for such extra work and extra material? Is there not a view that can justly and properly be taken of this case that makes this testimony entirely admissible? Suppose the trial judge had rejected this testimony, and the plaintiff had come here claiming error in its rejection, how could this court have justified such rejection? Could we say that in no aspect, and for none of the purposes of this case, was this testimony admissible? Let us keep this also in mind as we review the situation.

Now, after this talk with Corbin, and after Arnold had delivered this communication, Tryon goes forward, and completes the work, and the company refuses to pay on the ground that it owes no obligation to him. They say that no debt was created, and that this testimony should not have been admitted, because Corbin had no authority to bind the company to pay Tryon, and because what Arnold said was merely hearsay. Should the company, under all the circumstances, be permitted to avail itself of this claim, and can it justly say that no obligation on its part to pay Tryon has arisen out of all the facts? Suppose Corbin, instead of making the communication through Arnold, had himself made it directly to Tryon, would not Tryon have had every reason to believe that Corbin was telling him the truth as to the action of the company? Would he have had no right to rely upon such a statement, coming from such a source, or should it be refused the place of a factor in this case, because there was no evidence of any express authority to Corbin to bind the company? A majority of the directors, at least, had lull knowledge that Tryon claimed to be doing extra work, and that, if he did it, he should expect extra compensation. He had told both Prescott and Corbin this, and they saw him from day to day doing this work; in fact, all the directors from time to time saw him going forward with it. The work was in fact extra work, and the company to-day retains the benefit of it. Now, is there nothing in all this that ought to close the mouth of this company? Can a director, acting in the manner that Corbin did, and professing to communicate to Tryon the action of the company, persuade Tryon to expend his work and materials upon the company's property, and thus give the company the benefit of them, without all these circumstances becoming important and vital factors of the company's liability for the reasonable worth of such expenditures? Can the company say that "one of our directors did, indeed, deceive Tryon; "that" he misrepresented the facts to him, and induced him to do what he would not otherwise have done, and our company has obtained the resulting pecuniary benefits, and we have them in our pockets, and intend to keep them there, because Corbin's statements were not true, and because our company did not in fact make any such order as Corbin reported to Tryon. We intend to keep our advantage. We intend to keep Tryon's money, materials, and labor, notwithstanding every member of our board of direction saw Tryon going on all the time precisely as if he understood and supposed that, the company was to make him good for these expenditures as extras, and notwithstanding the fact that he told the majority of the directors, Prescott and Corbin, that he would not go on unless he was to be paid for them as extras, and notwithstanding it does not appear that Tryon ever said to either of them, or to any of the directors or agents of the company, at any time, that he had changed his Intention in that regard." Is this a just and equitable position for this company to take? Was there not enough in all this at least to put these directors and this company upon an inquiry, if they did not in fact intend and never had Intended or agreed to treat this work and these materials as extras? They all saw them being furnished; they were in fact extras; they were expenditures which the company knew Arnold was making no claim upon it for, but which the company knew Tryon had said he should regard as extras, and which he should not furnish unless the company was willing to pay him for them as extras. The company and its directors saw Tryon from day to day going on and doing this precise extra work, and furnishing these extra materials. It appears to be a fact that he was doing all these things as extras, and doing them upon the strength of the word which Corbin had in fact communicated to him as to the company's desire and purpose concerning them.

But it is said that it was not Corbin, but Arnold, who communicated to Tryon the claimed result of the directors' meeting. If Corbin chose Arnold as the medium of communication is the communication of any less legal value to Tryou as a fact in this case than if Corbin had personally communicated it? Corbin in fact selected this medium. He told Tryon...