Wexler Const. Co. v. Housing Authority of Town of Norwich

• Court: Connecticut Supreme Court
• Writing for the Court: Before INGLIS; DALY; In this opinion INGLIS; O'SULLIVAN
• Citation: Wexler Const. Co. v. Housing Authority of Town of Norwich, 128 A.2d 540, 144 Conn. 187 (Conn. 1956)
• Decision Date: 27 December 1956
• Parties: WEXLER CONSTRUCTION COMPANY, Inc. v. HOUSING AUTHORITY OF the TOWN OF NORWICH. Supreme Court of Errors of Connecticut

Page 540

128 A.2d 540

144 Conn. 187

WEXLER CONSTRUCTION COMPANY, Inc. v. HOUSING AUTHORITY OF the TOWN OF NORWICH.

Supreme Court of Errors of Connecticut.

Dec. 27, 1956.

John M. Donahue, Hartford, with whom was Lee C. Fielden, Hartford, for appellant (plaintiff).

Paul J. Driscoll, Norwich, with whom was Robert M. Sussler, Norwich, for appellee (defendant).

Before INGLIS, C. J., WYNNE and DALY, JJ., and LOUIS SHAPIRO, supperior judge.

DALY, Associate Justice.

The substituted complaint is in four counts. The court sustained the defendant's demurrer to the first and fourth counts and rendered judgment that the allegations were insufficient. Each of those counts alleged the following facts: On May 13, 1950, the plaintiff, as general contractor, and the defendant , as the owner, entered into a written contract for the erection of a moderate rental housing project, in accordance with plans and specifications furnished by the defendant, for a contract price of $466,809, subject to additions and deductions. The contract provided that work should be started on May 18, 1950, and that the project, exclusive of landscaping, should be completed in 150 days, and the landscaping in 40 days thereafter. On of about May 13, 1950, the plaintiff, as general contractor, made an oral agreement with the Candor Construction Company, hereinafter called Candor, as subcontractor, wherein the latter agreed to supply all labor, material and equipment necessary to perform the excavation and site development work, in accordance with the plans and specifications furnished by the defendant, for a contract price of $44,000, subject to additions and deductions. This oral agreement was confirmed by a written agreement between the parties dated June 1, 1950. The plaintiff and Candor commenced work under the contracts on or about May 18, 1950.

As the job progressed, it became apparent that the plans and specifications for the excavation and site development work had been prepared without any clear idea either of the results sought to be accomplished or of the conditions which would result if the plans and specifications were carried into effect. It became necessary, therefore, to redesign the work on a day-to-day basis during the construction. The efforts to do this consisted of a series of attempts to solve problems as they arose, and no clear conception of ultimate objectives was ever developed. Consequently, the work as completed was of an extremely costly nature. In addition, the inability to develop a suitable comprehensive plan resulted in a constant stopping and starting of the work. Finally, on or about December 19, 1951, it became necessary to stop the work completely. As of then, the excavation and site development work for a major portion of the site had been completed 'in accordance with the defendant's directives to plaintiff Wexler in part by Candor as plaintiff Wexler's subcontractor and in part by plaintiff Wexler with its own forces.' A substantial amount of corrective work remained to be done in this area. In the remaining portion of the site, for which no adequate revisions of the contract plans had been prepared, the site development work was incomplete.

On December 19, 1951, at a meeting between representatives of the plaintiff and the defendant, at which representatives of Candor were present, it was agreed that the defendant would have revised plans and specifications for the correction and completion of the site development work prepared and that the plaintiff would submit a proposal for the performance of it and a statement of claims for extra compensation for the work performed up to that date. Thereafter, the defendant had various revised plans and specifications for the completion of the site development work prepared, but ultimately rejected all of them. On or about March 12, 1952, the defendant requested the plaintiff to submit its final periodical payment estimate. On that date all of the work to be performed by the plaintiff under its contract of May 13, 1950, except the site development work, had been duly performed and completed. On April 30, 1952, Candor forwarded to the plaintiff its claim. On May 2, 1952, Candor agreed not to enforce collection of its claim against the plaintiff except from the proceeds of any recovery by the plaintiff from the defendant on Candor's behalf or from the proceeds of the plaintiff's right of exoneration or reimbursement against the defendant. On or about May 2, 1952, the plaintiff forwarded to the defendant its claim. At the time this suit was brought, two years after the completion date originally scheduled, the site development work was still not completed. The excavation and site development work performed by Candor, and by the plaintiff with its own employees, bore no recognizable resemblance to that called for by the contract plans and specifications. In addition, it was performed under conditions not contemplated by anyone at the time the contract of May 13, 1950, between the plaintiff and the defendant was signed. The payment provisions in that contract which were properly allocable to excavation and site development work were entirely inapplicable.

The defendant, it was alleged, became obligated to pay the plaintiff the reasonable value of the excavation and site development work performed, that value to be determined in the light of the conditions under which the work was performed. The reasonable value of the work was $276,466.81. The total amount of the payments received by the plaintiff from the defendant which were properly allocable to the work was $97,794.54. In the first count the plaintiff sought recovery in quantum meruit and claimed as damages $178,672.27, the difference between $276,466.81 and $97,794.54, plus interest. In the fourth count it sought recovery of this sum, claiming that it was entitled to receive it as compensation for site development work which was not shown on the contract plans and specifications...