Willametz v. Goldfeld

• Decision Date: 21 September 1976
• Citation: 171 Conn. 622,370 A.2d 1089
• Court: Connecticut Supreme Court
• Parties: Edward WILLAMETZ v. Hyman GOLDFELD.

Page 1089

370 A.2d 1089

171 Conn. 622

Edward WILLAMETZ v. Hyman GOLDFELD.

Supreme Court of Connecticut.

Sept. 21, 1976.

J. Francis Hayden and William D. Shew, Hartford, on the brief, for appellant (plaintiff).

John A. Spector, Hartford, on the brief, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The sole issue in this appeal is the sufficiency of damages awarded to the plaintiff by the Superior Court for the defendant's repudiation of a contract for regrading and the sale of fill and other earth materials. The facts of this case as found by the trial court are as follows: On July 29, 1968, the plaintiff, an excavating and road building contractor, and the defendant, a real estate developer, entered into a written agreement whereby the plaintiff was given permission to enter a tract of land, which the defendant purportedly owned, located in Wallingford, Connecticut, and to remove 132,000 cubic yards of surplus earth material or fill. The plaintiff agreed by pay fifteen cents a cubic yard to the defendant for the material, and he also agreed to regrade 34,000 cubic yards of earth for which the defendant agreed to pay forty-five cents per cubic yard for the regarding. In addition the plaintiff agreed to pay a $2000 commission of the agent who acted as intermediary for the parties.

On August 6, 1968, the plaintiff began work at the project site with a power shovel, a bulldozer, four trucks, and a crew of six workmen. Soon after work was begun, the plaintiff and his crew were stopped by the town building inspector because no permit for the work had been issued. The plaintiff immediately contacted the defendant, who assured him that the inspector was mistaken and that a permit had been obtained. The plaintiff recommenced work one week later and was again stopped by the inspector. The parties corresponded during the month of August, as the defendant was considering changing the plan and accelerating the work schedule and had asked the plaintiff for a new estimate based upon these changes. The plaintiff submitted the estimate, but specified that the new figures were not intended as a modification of the terms of the agreement of July 29. While the plaintiff was waiting to be advised when he could begin work at the site, another contractor began work there. The plaintiff complained to the defendant. In a letter received by the plaintiff on September 14, the defendant repudiated the agreement. The plaintiff immediately removed his equipment from the site. Subsequently, the plaintiff discovered that the defendant did not own or have a leasehold interest in the site, nor did he have permission to authorize work on the site.

The plaintiff brought this action to recover damages resulting from the defendant's breach of the written agreement. The defendant filed four special defenses claiming that the agreement was not a valid and binding contract, and filed a counterclaim for damages against the plaintiff in the event that the agreement was found to be a valid and binding contract. The trial court held that the agreement was a valid and enforceable contract and that it had been wrongfully repudiated by the defendant. Judgment was rendered for the plaintiff on the complaint and the counterclaim, and the court awarded damages to him totaling $22,513, plus interest. That total included sums for loss of the profits the plaintiff would have earned on the grading job, for the cost of moving the power shovel and bulldozer to the site, for loss of the use of the shovel and bulldozer during the thirty-five days they remained at the site while the plaintiff waited for the defendant to obtain a work permit, and for loss of the use of the four trucks during the two days in August of 1968 when the plaintiff actually attempted to work at the site. The plaintiff has appealed to this court, claiming that the damages awarded by the trial court were insufficient in amount.

The plaintiff has made numerous assignments of error. In many of them, the plaintiff claims that the court erred in failing to include in its finding certain paragraphs of the draft finding which contain material facts which are admitted or undisputed. To secure additions by this court on that ground, however, 'it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614; Maltbie, Conn.App.Proc. § 158. That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. Practice Book § 628(a). The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534, and cases cited therein.' LaReau v. Warden, 161 Conn. 303, 304, 288 A.2d 54, 55. Of the paragraphs of the draft finding which the plaintiff seeks to add, several will not be added because they contain facts which are implicit in the finding; see Broderick v. Shea, 143 Conn. 590, 591, 124 A.2d 229, cited in Vogel v. New Milford, 161 Conn. 490, 491, 290 A.2d 231; and others will not be added because they are immaterial. See Salvatore v. Milicki, 163 Conn. 275, 277, 303 A.2d 734, and the citations contained therein. The remaining paragraphs are replete with testimonial evidence, chiefly that of the plaintiff, which was introduced at trial and which, in some instances, was directly contradicted by the testimony of other witnesses. We conclude, therefore, that correction of the findings of fact is not warranted in this case. Accordingly, we consider only those assignments addressed to the trial court's conclusions as to damages.

We first consider whether the trial court erred in awarding damages for loss of the use of the plaintiff's four trucks for a time of only two days, although the plaintiff had claimed damages for loss of their use for a period of thirty-five days. In its memorandum of decision, to which we can turn to ascertain the ground on which the court acted; see Ruggles v. Town Plan & Zoning Commission, 154 Conn. 711, 712, 226 A.2d 108; the court noted that, unlike the power shovel and bulldozer, the trucks were mobile and when the work was delayed they could easily have been removed from the project site to be used elsewhere and returned when the work commenced. Therefore, the court limited its award for loss of use to the two days in August when the plaintiff actually attempted to work at the site, although the plaintiff's trucks had been left there idle for thirty-five days. The plaintiff clearly had a duty to exercise reasonable conduct to minimize the damages occasioned by the defendant's breach; Brown v. Middle Atlantic Transportation Co., 131 Conn. 197, 199, 38 A.2d...