Lenox Construction Co. v. Colonial Construction Co. , 93 Conn. 234 ( 1919 )

The errors assigned by the defendant all relate to the instructions given to the jury. Error is assigned to one part of the charge bearing upon the defendant's counterclaim, to the effect that the defendant had no right to recover upon its counterclaim, because it appeared that "there was no auditing and certifying of the amounts which were expended by the defendant in carrying out the contract to its completion, which is a condition precedent to a recovery upon that phase of the contract." The contract provided this as a condition precedent, and an omission to show this by the defendant was an objection which, if well taken, was fatal to the defendant's right to recover upon its counterclaim. Hoyt v. Pomeroy,87 Conn. 41, 45, 46, 86 A. 755.

But the defendant now claims that the plaintiff is precluded from raising this question, because it failed to deny the allegations of the counterclaim which recited the provisions of Article 5 of the contract. It is undoubtedly true, as the defendant contends, that any material allegation in a counterclaim or other pleading not controverted by the reply, is deemed to be admitted. It is also undoubtedly the rule that only such facts are admitted as are well pleaded. The plaintiff made this written agreement a part of its complaint. This agreement recites in full Article 5, which, among other things, provides that the expenses incurred by the defendant shall be audited and certified by the architect. The counterclaim itself, in paragraph one, admits that the defendant made such an agreement. This admission was made just before the purported recital of Article 5 of the contract in paragraph three of the counterclaim, which omitted all reference to the certificate of the architect. The defendant cannot in this way blot out, or materially modify what it had just conceded to be true in its counterclaim, as to the terms of this written agreement. Technically speaking, this repugnant pleading should have been corrected at an earlier stage of the case, but this was not done, and the trial court, when instructing the jury, was confronted with two allegations in the counterclaim, disagreeing with each other upon a vital point in the case; the first showing a provision of Article 5 in the contract which required an auditing and certification by the architect, and the latter so stated by the defendant that it appeared that Article 5 of the contract contained no such provision. It is apparent that the trial court regarded as untrue those allegations of the defendant respecting Art. V, which were repugnant to its admission already made in its counterclaim. In this there was no error. Gulliver v. Fowler, 64 Conn. 556,30 A. 852.

The defendant also complains of the instructions of the court as to the plaintiff's claim for damages for the alleged conversion of the personal property of the plaintiff, which was as follows: "You must give a verdict for the plaintiff for the reasonable value of the materials which were taken over by the defendant." The record discloses that the jury were also instructed upon this subject that the contract provided that "if the contractor fails to carry on the work with promptness and diligence and supply a sufficiency of workmen, or fails in any other of his agreements, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty after three days written notice to the contractor, and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, he shall be at liberty to terminate the agreement and carry on the work himself." The judge also said: "I cannot read that counterclaim without holding that it is based upon the second part of that agreement which gives the defendant under certain circumstances the right to terminate the contract and enter on the work himself. Regarded from that standpoint the certificate of the architect is not in accordance with the contract." It further appears that upon this branch of the case the trial court also said to the jury: "There is no question in the case that these tools and materials were taken over by the defendant and used by him in carrying on the work. There is no question but what they were demanded of the defendant by the plaintiff, and that he refused to give them up until such time as the work was done." In speaking of the justification upon which the defendant relied for taking personal property of the plaintiff, the trial court, among other things, said to the jury: "My reason for saying that, is that there is no certificate . . . such as the contract provides as a condition precedent to his taking over the work; and in the second place, it doesn't seem to me that there was ever really any termination of the contract within the terms of the agreement."

The instructions of the court upon this point were well within the principles of law laid down by us in the case of Valente v. Weinberg, 80 Conn. 134, 136, 67 A. 369, and in Hoyt v. Pomeroy, 87 Conn. 41, 45, 46,86 A. 755. Article 5 of the contract provides, as a condition precedent to the defendant's right to terminate the contract, that the architect shall not only certify that there has been a refusal, neglect or failure upon the part of the plaintiff, but also that such refusal, neglect or failure is a sufficient ground for the termination of the contract. An examination of the architect's certificate now before us discloses that there is an absence of a finding by the architect that such negligence and refusal are a sufficient ground for the termination of the contract by the defendant. This was not a compliance with the requirements of the contract to certify the architect's own judgment as an arbiter between the parties. It appears that the certificate of the architect afforded no justification for the action of the defendant as set forth in its counterclaim; and it was for the jury to decide whether there was a failure, neglect or refusal on the part of the plaintiff to comply with the provisions of the contract, and also the question of damages. The issues arising upon the allegations of the complaint upon these points were carefully and fully explained to the jury by the trial court, and the instructions upon these questions were correct in law and sufficient for the guidance of the jury in coming to the verdict that was rendered.

The plaintiff claimed and offered evidence to show that when the defendant refused to allow it to resume work on the building, the plaintiff had rendered services of the value of $3,333.02, of which $295 only had been paid. The defendant denied the alleged value of the services, and offered evidence to show that it had expended $636.05 in paying workmen whom the plaintiff owed when work was stopped upon the building. The trial court properly and at length instructed the jury upon this branch of the case, but in another part of the charge the jury were told that they might allow the plaintiff for the reasonable value of the services rendered, less whatever payments they found the defendant "ought to be credited with, $295 or $345," according to the facts found. Although the statement as to the $345 was incorrect, it does not necessarily follow that this warrants a new trial. The record shows that the jury must have adopted the minimum amount of $295, properly referred to by the court. This they could not have done under the instructions given, without finding that the sum of $295 was all that the defendant could recover of its claim on account of alleged payments. From this it is apparent that the jury did not regard the defendant's claim of any weight, and that no harm came from this inadvertent statement of the court.

There is no error.

In this opinion the other judges concurred.