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

• Decision Date: 05 July 1962
• Citation: 183 A.2d 262,149 Conn. 602
• Court: Connecticut Supreme Court
• Parties: WEXLER CONSTRUCTION COMPANY, Inc. v. HOUSING AUTHORITY OF the TOWN OF NORWICH. Supreme Court of Errors of Connecticut

Page 262

183 A.2d 262

149 Conn. 602

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

Supreme Court of Errors of Connecticut.

July 5, 1962.

Paul J. Driscoll, Norwich, with whom, on the brief, was Leo J. McNamara, Norwich, for appellant (defendant).

Ernest W. McCormick, Hartford, with whom, on the brief, were Bruce W. Manternach, Lee C. Fielden and Colin C. Tait, Hartford, for appellee (plaintiff).

Before KING, MURPHY, SHEA and ALCORN, JJ., and LEIPNER, Superior Court judge.

KING, Associate Justice.

This is an action in which, under the first count, the plaintiff, a general contractor, seeks to recover on behalf of its subcontractor the reasonable value of work performed by the latter, outside the scope of the original construction contract, at the request of the defendant, the owner. ¹ The other claims of the plaintiff will be discussed latter. Although the trial was lengthy and the details involved, the facts necessary for an understanding of our decision will be giben in an abbreviated and simplified form.

The plaintiff, as the general contractor, entered into a contract with the defendant on May 13, 1950, for the construction of a housing project in Norwich for a price of $466,809. The plaintiff subcontracted the site development portion of the work to the Candor Construction Company, Inc., of Norwich, hereinafter referred to as Candor, for a price of $44,000. Candor commenced its work on or about May 18, 1950. Shortly thereafter, drainage and resulting grading problems were encountered, and they eventually made it necessary for Candor substantially to deviate from the site development plans called for in the contract between the plaintiff and the defendant. Some of these deviations were made pursuant to written change orders and were, therefore, in accordance with the terms of the contract. However, even on the claims of proof most favorable to the plaintiff, many of the deviations were not covered by change orders but were made outside the contract in accordance with oral directives given by representatives of the defendant. Some of these directives apparently were given to the plaintiff to pass along to Candor, and others were given directly to Candor. In consequence of these orally authorized deviations, the time and the cost involved in developing the project site were greatly increased.

Finally, on November 6, 1951, some thirteen and a half months after the time when the project was to have been completed, the defendant ordered the site development work stopped in order to afford it an opportunity to work out solutions to the drainage and grading problems. A large amount of corrective and additional drainage and site development work still remained to be performed. All the work required to be performed under the plaintiff's contract with the defendant, apart from the site development work, was fully performed in accordance with the contract. The site development work was finally completed by another contractor following new competitive bids on new plans, which were submitted by a new architect.

Under the first count, the plaintiff sought recovery, on behalf of Candor, of $178,672.27, with interest, in quantum meruit. This is claimed to be the reasonable value of the work done outside the contract by Candor at the request of the defendant, either directly or through the plaintiff. In the earlier stages of this protracted litigation, the defendant demurred to this count on the ground that it did not allege that the plaintiff was in any way liable to Candor so as to entitle the plaintiff to maintain the action on Candor's behalf. We held, on appeal from the action of the trial court in sustaining the demurrer, that the allegations of the complaint were sufficiently broad to allege that the plaintiff was liable to Candor. We did not decide whether evidence of such liability was required. The judgment was ordered set aside, and the case was remanded with direction to overrule the demurrer. Wexler Construction Co. v. Housing Authority, 114 Conn. 187, 194, 128 A.2d 540.

A basic claim of the defendant on this appeal is that the liability of the plaintiff to Candor is a prerequisite to recovery and has not been proven. The plaintiff claims that such liability is not a prerequisite to its right of recovery. 'It is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts into operation unless for the purpose of obtaining redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity.' Waterbury Trust Co. v. Porter, 130 Conn. 494, 498, 35 A.2d 837, 839; Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294. A plaintiff can recover only by proving that he himself is entitled to prevail on the cause of action alleged. It is not enough that he prove that some other person, not a party to the case, would be entitled to recover on that cause of action. The only way in which the plaintiff here could be injured, under the allegations of the first count, is if it is liable to Candor in connection with the extra work. A contractor is not necessarily, nor even generally, liable to its subcontractor for the extra work done by the subcontractor by reason of fault on the part of the owner or his agents. See Lichter v. Mellon-Stuart Co., 196 F.Supp. 149, 151 (W.D.Pa.); McGrath v. Electrical Construction Co., 364 P.2d 604, 608, rehearing denied, 370 P.2d 231 (Ore.).

The cases of St. Paul Dredging Co. v. State, 259 Minn. 398, 407, 107 N.W.2d 717, and United States v. Blair, 321 U.S. 730, 737, 64 S.Ct. 820, 88 L.Ed. 1039, on which the plaintiff relies to support its proposition that no liability from a contractor to a subcontractor need be proven in order for the former to maintain an action on behalf of the latter, are...