Valente v. Weinberg

• Decision Date: 30 July 1907
• Citation: 67 A. 369,80 Conn. 134
• Court: Connecticut Supreme Court
• Parties: VALENTE v. WEINBERG.

67 A. 369

80 Conn. 134

VALENTE

v. WEINBERG.

Supreme Court of Errors of Connecticut.

July 30, 1907.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Action for services rendered and materials furnished under building contracts by Pasquale Valente against Israel Weinberg. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles S. Hamilton and John L. Gilson, for appellant. Benjamin Slade, for appellee.

THAYER, J. The plaintiff and defendant entered into two contracts for the erection of a brick apartment house by the former upon the land of the latter. The second contract provided merely for additions to and changes in the earlier one, and we may refer to them as one contract. The plaintiff claims that after he had nearly completed the building the defendant unlawfully ejected him from the premises and prevented his completion of the contract. He sues to recover the value of the labor and materials which he had furnished before he was ejected. The defendant admits that he ejected the plaintiff and terminated his employment under the contract, but claims to have done so pursuant to article 5 of the contract, and by his answer and counterclaim seeks to recover from the plaintiff the amount which the defendant has paid to another person to complete the building. If the plaintiff, without fault on his part, was prevented by the defendant from completing the contract, he could treat it as rescinded, and recover, on quantum meruit, for the work and labor performed under it. or he could bring his action for damages against the defendant for breaking the contract and preventing the plaintiff's performance of it. Derby v. Johnson, 21 Vt. 18, 21; Wright v. Haskell, 45 Me. 492; United States v. Behan, 110 U. S. 338, 344, 4 Sup. Ct. 81, 28 L. Ed. 168; Chicago v. Tilley, 103 U. S. 146, 154, 26 L. Ed. 371; Connelly v. Devoe, 37 Conn. 570, 576. If, on the other hand, the plaintiff failed to perform his contract, and the defendant rightfully entered and completed it, acting under the terms of the contract, the plaintiff cannot recover. The case turns, therefore, upon the question whether the defendant rightfully entered and ejected the plaintiff.

Article 5 of the contract reads as follows: "Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified by the architects, the owner shall be at liberty, after three days' written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architects shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work, and to enter upon the premises, and take possession, for the purpose of completing the work included under this contract, of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but, if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties." This article contemplates that there may be a neglect or failure on the part of the plaintiff of such a character as not to constitute a sufficient ground for terminating his employment, and it also contemplates that there may be such negligence or failure on his part as to constitute such ground and to warrant such procedure. In the former case, one form of certificate by the architects and one course of proceeding by the defendant is provided for, while a different certificate and a different proceeding is provided for in the latter case. The plaintiff's negligence or failure might be of such a character as not to warrant...