3 Conn. Cir. Ct. 67 | Conn. App. Ct. | 1964
This action was brought by the plaintiff to recover damages under an agreement to reupholster a sofa and a chair of the defendant Muriel
The court found the following facts: No evidence was offered as to any participation by the named defendant in the transactions involved in this case. At the request of the defendant Muriel R. Welge, hereinafter referred to as the defendant, the plaintiff’s principal salesman, buyer and shop manager, Irwin Millstein, who had about fifteen years’ experience in the upholstery business and was familiar with the buying of furniture and its accessories and with the value of reupholstered furniture, furniture prior to reupholstery and secondhand furniture, went to her home to discuss the reupholstering of a sofa and a club chair and the construction of an ottoman. Thereafter, the defendant went to the plaintiff’s place of business and discussed the matter further with Millstein. The fabric for the furniture was selected. The sofa and chair were to be “modernized” so as to include slimming of the arms to correspond with a sample sofa then on the floor of the plaintiff’s showroom. “Slimming” of the arms refers to the width of the arms, whether one is sitting on the sofa or looking at it left or right to the arm. A written contract was executed, and the defendant paid a deposit of $20 on the agreed price. Subsequent to the signing of the contract, some changes Avere made which were duly entered on the plaintiff’s copy of the contract, including the addition of the words “slim arms on 2 pcs.” The furniture was picked up and taken to the plaintiff’s place of business, where it was processed. After three weeks, it was returned to the defendant’s home. The defendant refused to accept it. The arms on the sofa and chair had been slimmed to such an extent that the overhang of the arms which the defendant desired —and an overhang appeared on the floor sample
The plaintiff sought to correct the finding by striking out sixteen paragraphs thereof and by adding thirty-six paragraphs thereto. These corrections cannot be made. There is evidence to support the finding. The plaintiff is attempting, by a wholesale attack on the finding, which our courts have repeatedly criticized, to substitute its version of the facts. Krupa v. Farmington River Power Co., 147 Conn. 153, 157. It is the function of the trial court to assess the worth of the evidence.
The plaintiff claims that the modification of the written contract by the insertion of the provision for the slimming of the arms is invalid for lack of a new consideration. There is no merit to this claim. It is well settled that a written contract may be modified by parol if the parties so intended. Grote v. A. C. Hine Co., 148 Conn. 283, 286. The mutual promises of the parties furnish the consideration for the modification of the contract. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342. The contract, as thus modified, became the real contract between the parties. West Haven Water Co. v. Redfield, 58 Conn. 39, 41.
The facts in the case before us bring it within the doctrine of Douglass v. Hart, 103 Conn. 685, and constitute “a bailment of the kind known as locatio operis faciendi, a bailment where work and labor, care and pains are to be performed or bestowed upon the thing delivered to the bailee. The parties to a
Where the bailee has deviated from the bailor’s instructions in altering the thing bailed, with the result that it has lost its value to the bailor and is worthless to him, as in the instant case, and has been abandoned to the bailee, the bailor may sue in trover for the value of the property. Douglass v. Hart, supra, 690; Devine Hallenbeck Co. v. Autotyre Co., 113 Conn. 97, 101. In such an action, the measure of damages is the value of the goods at the date of the conversion. Giuliano Construction Co. v. Simmons, 147 Conn. 441, 444. “In determining this value it is generally sufficient to show the money value of the goods in the market at that time . . . . Where an article does not, however, have a market
There is no error.
In this opinion Kosicki and Levine, Js., concurred.