Hillhouse v. Duca , 101 Conn. 92 ( 1924 )

The appellants attack the judgment of the court in twelve reasons of appeal which are identical in form and claim, and the appellant Kennedy files two additional reasons of appeal assigning error as to the finding by the court as to the date of the commencement of his lien, and in ruling that he was not entitled to interest on his claim. We will first consider these claims. The committee in his report, accepted by the court, expressly finds as a fact that the work by Kennedy upon the Highland Apartments began April 10th, 1920, which date, of course, fixes the time of commencement of the lien. Kennedy claimed that he began work October 6th, 1919, basing his claim upon the fact found by the committee that on the date last mentioned he cut out and removed pipes from the old house before the same was moved and while situated upon the Granite Street lot to be stored and eventually again used in the same house when moved to the Bristol Street lot, although in fact they were not so used. No further work was done upon the Granite Street lot or any building thereon until April 10th, 1920. The finding is one of fact by the committee, and no remonstrance was filed by Kennedy to the committee's report. The plaintiffs therefore contend that the finding concludes the matter. Kennedy claims that the finding is one of mixed law and fact, that is, that the finding of the date of April 10th, 1920, as the commencement of the lien is dependent upon the subordinate facts found with reference to the work done in October, 1919. Assuming this defendant to be correct in this regard, the finding of the date in April, 1920, is clearly justified by all subordinate facts. The cutting, removal and storage of pipe to be used later in the same building when removed to another lot, is not work upon a new building begun on the former site of the old house six months afterward, nor so connected with any such work as to form any basis for a claim of lien on the new building, and the fact was correctly found by the committee. As regards the question of interest entering into the total amount claimed by Kennedy, it appears that the committee found certain facts with reference thereto, but stated no conclusion, and that the court, having found that Kennedy had no claim whatever by way of lien, was not concerned to find the amount of the owners' indebtedness to him; and as the conclusion we have reached will not result in that task being assumed by another judge, the matter becomes academic and immaterial. The court committed no error in respect to these reasons of appeal.

Ten of the remaining twelve reasons of appeal fall into two groups, the first, second, third, sixth and ninth relating to the construction and validity of the waiver of lien executed by appellants as determined by its form and content in view of the circumstances surrounding its execution; the fourth, fifth, seventh, eighth and tenth are concerned with a claim that plaintiffs are not entitled to the benefit of the waiver of liens, by reason of conduct on their part which estops them from so doing.

Taking up the claims of appellants as outlined in the first group of reasons of appeal just noted, we find the contention that the object of the waiver as disclosed in the negotiations preceding its execution indicated an understanding and intent that the liens of the parties executing the waiver were only so far to be affected as to subordinate them to the mortgages which Lomas Nettleton and the Land, Mortgage and Title Company proposed to take from the owners, leaving the rights and claims of all lienors as between themselves unaffected thereby. In construing any instrument we have recourse to the negotiations and other circumstances attendant upon its execution. In Weinberg v. Valente,79 Conn. 247, 249, 64 A. 337, we said, in considering the construction and consequent effect of a waiver of lien, that "it is necessary to consider the words employed by the parties . . . in the light of the object which they had in view while employing them."

First considering the words employed by the parties in the instant case, we find in the instrument as executed an absolute and unqualified waiver and relinquishment of all liens and claims of lien which the signers had or might thereafter have upon the land described and all buildings thereon, making use of a form readily recognizable as in frequent use for such a purpose. This is conceded by appellants, who contend, however, that the instrument, viewed in connection with surrounding circumstances, must be construed as limited to a waiver in favor of the proposed mortgagees. Under the claim made this object is to be effected not by giving some meaning to words employed, different from their apparent import, but by reading into the instrument itself an additional clause limiting its effect in accordance with appellants' claim. It is extremely doubtful whether the object sought could legally be brought about in this way. In doing so we should enter the domain of reformation for which no claim is made in the pleadings, and for which the record does not afford the necessary findings of fact.

Passing to the negotiations attendant on the execution of the instrument, we find them concerned with the familiar situation of a sort of arrested development in the construction of buildings, for the financing of which adequate resources have not been provided in advance, and by reason of which the parties get together to see what can be done to save the situation. In the present case relief was thought available by means of loans from Lomas Nettleton and the Land, Mortgage Title Company, secured by mortgages, which of course these parties would not furnish unless the hazard of mechanics' liens prior to their intended incumbrances should be obviated. The attorney for the owners and for Lomas Nettleton so stated to a large number of persons, assembled in his office, who had theretofore furnished labor and material in the construction of the apartment house, for some of which they had not been paid. Terms were made for the division of the sums to be advanced by the intended mortgagees and its payment to the lienors, conditional upon their executing a waiver of their liens. As is quite usual the various contractors insisted that all should sign the waiver, and it was deemed necessary from that point of view that the plaintiffs, who were contractors for a large amount of work, should do so, as the other contractors had an understanding that they would sign waivers if the plaintiffs would do likewise. The attorney, Mr. McGuire, called up the office of Hillhouse Taylor by telephone and talked with Mr. Taylor of that firm. The attorney reported to Mr. Lomas representing Lomas Nettleton and to Mr. Young representing the Land, Mortgage and Title Company, that Mr. Taylor would come down Monday and waive the lien. As is fully detailed in the finding of facts, Mr. Taylor in fact testified that he refused to do so. Mr. McGuire gave written assurance to the corporation last named of the conversation had with Mr. Taylor, as he reported it to the assembled creditors of the owner. The plaintiffs in fact refused to sign the waiver, and it was not until April 27th, 1921, that they executed any waiver, and then only in favor of Lomas Nettleton, and received $2,500. Afterward they executed other waivers, but in each case exacted a definite payment, and waived only to the extent of the amount at the time advanced on the first mortgage.

Recurring to the claim of appellants that the circumstances just referred to and all that transpired at the attorney's office at this conference appearing in the statement of facts justify the construction of the waiver desired by them, we find nothing to support it.

No question in any way arose as to the form of the waiver; the various parties intended to waive liens. They knew they had to do so in order to get payments for their services and material furnished and to be furnished out of funds arising from the loans to the owners. They also knew that while their waiver ran only to the owners, its purpose and object was for the security of persons with whom they might deal with reference to the premises. What was desired by all was very plain; the instrument presented for their execution and afterward executed by them reflected their desires, and was suited to their purpose. Nothing whatever appears in the record to show that there was the least care or desire on the part of anyone to limit the waiver for the benefit only of the mortgagees. It is futile, therefore, to claim that the purpose to make safe the security of the mortgagees so dominates the whole transaction as to modify by construction the plain terms of this written instrument, and thus vary or qualify the express terms of a written contract.

The next claim of appellants under the first group of reasons of appeal is that the waiver is invalid by reason of its execution being conditional upon the signature of the plaintiffs to it or some document of like import and obligation, and that for failure in this regard, it should be held as non-existent and as furnishing no security to anyone and not available by anyone in aiding any claim or action, and that all liens should remain in the position as though no waivers had been signed. We fail to find anything in the record that justifies this contention. It is true that the committee found that there was an understanding by those contractors who executed the waiver that the plaintiffs would call and execute the same the next day, but it is nowhere found that they made the delivery of the instrument conditioned upon the addition of plaintiffs' signatures, or that they would not have signed the waiver and authorized its delivery (either to the owners or their attorney) unless and until the same had been so signed. They signed it and they took their money and also their risks. There was no stipulation in this regard. The waiver was made primarily for the protection of Lomas Nettleton and was delivered to their attorney, though the consideration named therein moves from the owners and they are the beneficiaries named in the instrument. It was at once placed on record. The plaintiffs seem to have treated the claim which we have just considered as one for rescission or cancellation of the waiver, and advance weighty reasons why such a claim cannot prevail, but we do not so conceive its import. There is lack of proper pleading, necessary parties and facts found to justify relief of that nature. The appellants appear only to have claimed that the waiver legally never went into effect, and in this claim they are not justified, and the court committed no error in so holding.

Passing to the errors assigned in the group of reasons above referred to which from various claims and points of view raise the question of estoppel of the plaintiffs in favor of the appellants, we may observe that while considerable citation of authority upon this topic generally is made in the briefs of the contending parties, the acts and representations of the plaintiffs as the same appear in the record when applied to a statement of the elements of an estoppel in pais when predicated upon the conduct of a plaintiff, will readily determine whether such facts exist in the instant case as to call for the application of the principle.

In Monterosso v. Kent, 96 Conn. 346, 350,113 A. 922, this court, quoting from the opinion in Brant v.Virginia Coal Iron Co., 93 U.S. 326, said: "For the application of the doctrine of equitable estoppel, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury."

The claim of an estoppel made by appellants is based upon two principal contentions, first, that plaintiffs were bound by the representation made by McGuire that they would come down on the following Monday and sign the waiver which the other parties assembled in his office agreed to sign and did sign, and second, that the sum of $1,500 had been reserved for payment to plaintiffs and that they knew it at the time of the telephone conversation with Taylor. The committee so finds as to the fact last stated and the court accepted his report.

Taking up the first claim, no attempt was made by the committee to make a definite finding as to whether McGuire's statement to the assembled creditors, or Mr. Taylor's version of the conversation, represented the truth, and hence there is no finding that the plaintiffs made any promise to sign the waiver, nor can any such promise be inferred from anything appearing in the record. McGuire was not then acting for the plaintiffs, and they were in nowise bound by his report of the conversation had with Taylor. To be so bound, it was necessary for him to know that McGuire was making the representations made by the latter, and that he assented thereto, or that facts existed from which his assent could be fairly implied. Morgan v. Farrell,58 Conn. 413, 426, 20 A. 614. The record is bare of any facts to show such assent.

Passing to the second claim of an estoppel by conduct of the plaintiffs in receiving a payment of $2,500, in which was included the $1,500 originally reserved for payment to them at the meeting in December, we note that it is found that this sum was paid them April 27th, 1921, and then not for signing a general release similar to that signed by appellants, but a partial release to Lomas Nettleton only to the extent of $42,000 of the total of their mortgage, and that subsequent waivers to this firm were made only up to the amount advanced, and a definite payment was in each case exacted. It is not found that plaintiffs knew that the payment of $2,500 to them included the $1,500 allotted to them in the negotiations in December, and we fail to see that it would have in any way affected the equities of the case if they had known. They were receiving $2,500 for a definite act to be performed by them, in no way relating in terms or intent to the waiver signed by appellants and others, and it is difficult to see how the receipt of this sum in April could have been relied on by the appellants as evidencing an appropriation by the plaintiffs of the benefits of the December agreement, and so estopping them from setting up the fact that they were not parties thereto. There is nothing whatever in the record to show that appellants knew of this payment, or relied on it as an assurance that plaintiffs had come in upon the general plan, and were in effect in the position of having assented to it. The form of the release to Lomas Nettleton, if appellants had informed themselves regarding it, would have shown that the intent of plaintiffs was very decided not to sign a general release.

We fail to see that there is any merit in the appellants' claim that plaintiffs should have informed them that they had not and would not participate in signing the general release. They made no concealment of their position, and every act performed by them was additional evidence of their persistence therein. The original general release was a matter of record, and appellants before being put to possible future loss to any great extent, could have satisfied themselves that plaintiffs had not signed it.

For the reasons above stated, we conclude that plaintiffs were estopped neither by representations or conduct.

The claim of plaintiffs, that even if the release which appellants signed never had existed, the appellants' liens were junior to that of plaintiffs, and that therefore the latter have not been injured by the judgment, is not sound, since in the case supposed, instead of the finding and judgment of the Superior Court that appellants had parted with their liens by release, and had no liens at all, there would have been a finding of their position in the order of priority and a legal possibility of receiving something from the avails of a foreclosure sale if the same were of an amount to reach down and cover any portion of their claims. The fact that from a financial point of view such a position was not likely to be productive, does not alter their legal rights.

The eleventh and twelfth reasons of appeal are concerned with the claims of appellants as to the proper disposition of the proceeds of sale of the Bristol Street property, and of the rents arising out of a receivership in the present cause. Our conclusion that the appellants have no liens upon the property involved in this action makes a discussion of these claims unnecessary.

The appellee, the Land, Mortgage and Title Company, claim, on the one hand, that plaintiffs should be held to have joined in the original general waiver, but that in any event appellants executed the same, and that this appellee should have the benefit thereof, as held by the trial court. The claims of this appellee have been fully considered in the foregoing discussion.

There is no error.

In this opinion the other judges concurred.