The plaintiffs in this case, Louis Beckenstein and Henry Beckenstein (plaintiffs), are the owners and developers of the Wintonbury Mall in Bloomfield. There were originally two defendants in the case: Potter & Carrier, Inc. (Potter & Carrier) was a roofing contractor hired by the plaintiffs in 1969 to install a roof on certain buildings in the mall; General Aniline & Film Corporation (GAF) was the manufacturer of certain roofing material utilized by Potter & Carrier in installing the roof. After Potter & Carrier had completed its work, the roof developed leaks and, by 1975, it had to be completely replaced by the plaintiffs at a cost of about $170,000.
The plaintiffs filed the present action against the defendants on January 28, 1975. Potter & Carrier was defaulted for failure to plead before trial. The case against GAF then proceeded to trial before a jury with Judge Corrigan presiding. At the close of all the evidence on November 12, 1980, GAF moved for a directed verdict, which motion was denied by the court. Thereafter, two theories of liability were submitted for the jury’s consideration: (1) breach of contract through the agency of Potter & Carrier; and (2) strict liability in tort for providing defective roofing materials. On November 13,1980, the jury returned a verdict in the plaintiffs’ favor in the amount of $211,569. In response to two interrogatories, the jury found that GAF was not liable on strict tort liability, 1 but did find that Potter & Carrier was the agent of GAF. 2
GAF then moved, pursuant to Practice Book § 321, for judgment notwithstanding the verdict. On August
In order to assess the plaintiffs’ claims, it is necessary to delineate the evidence adduced in the trial concerning three relationships. We will first examine the relationship between Potter & Carrier and GAF. We will then examine the relationship between the plaintiffs and Potter & Carrier. Finally, we will examine the relationship between the plaintiffs and GAF. In reviewing a trial court’s action in setting aside a jury’s verdict, we are mindful of the fact that the evidence must be considered “in the light most favorable to the plaintiff and every reasonable presumption should be given in support of the correctness of the verdict.”
Zarembski
v.
Three Lakes Park, Inc.,
William Barnett, a technical supervisor for GAF whose area of operation covered the northeast region of the country, testified in regard to the procedures followed by GAF before entering into an “Approved Roofer’s Agreement.” He stated that the roofer was required to give GAF a list of three jobs it had completed, which GAF went out and inspected. In addition, the roofer had to give GAF a list of projects on which it was currently working, which GAF also inspected. Finally, GAF checked the roofer’s financial statements and its arrangement with the “metal men.” These procedures were undertaken to ensure that the roofer was both professionally and financially qualified.
Although there is some dispute as to which “Approved Roofer’s Agreement” was controlling, in their briefs both parties have relied on the 1969 agreement that was introduced into evidence.
4
There are three preliminary clauses in the agreement which recite the general underpinnings to the agreement. The first clause states, in part, that the “Roofer proposes to apply, from time to time as he receives orders for the same, roofs . . . manufactured by GAF in accordance with specifications to be selected by the roofer from the various specifications contained in the Specifications Catalog issued by GAF entitled ruberoid built UP roofing . . . which book is hereinafter referred to as RUBEROID SPECIFICATIONS BOOK . . . .” The Sec
Following these preliminary clauses, there are specific agreements between the parties. The plaintiffs rely heavily on the first paragraph as providing a basis for a finding of agency. That paragraph states as follows: “1. GAF agrees to sell to the Roofer and the Roofer agrees to purchase from GAF, at such prices and upon such terms and conditions as may from time to time be established by GAF, such Roofing Felts, Coated Roofing Products, Dubl — Coverage Roofing, Asphalt, Coal Tar Pitch, Primer, and Composition Flashing materials as may be required by the recommendations applicable to the particular specifications selected by the Roofer from the ruberoid specifications book for the application of such roof or roof and flashings.” The second paragraph provides, in part, as follows: “GAF agrees that in each case where the Roofer applies only a roof without flashing and such roof is applied strictly in conformity with the particular specifications selected by the Roofer from the ruberoid specifications book and applicable recommendations therein contained . . . and the Roofer complies with all the other terms, convenants [sic] and conditions of this agreement, GAF will furnish a surety bond in the form attached hereto and made a part of this agreement by
“7. The Roofer agrees (a) to construct each roof and flashing, as the case may be, in strict and complete conformity with the specifications selected by the Roofer from the ruberoid specifications book for the application of such roof or roof and flashing, and to comply with all provisions contained in the specifications so selected and applicable recommendations and any changes, additions, and alterations thereto as may be
“8. Immediately upon the completion of any work coming within the terms of this agreement, the Roofer agrees to notify GAF, using for the purpose of such notification Form ‘Notice of Completion,’ a copy of which is attached hereto and made a part hereof; and the Roofer hereby further agrees to furnish GAF with all information called for in said form ‘Notice of Completion,’ and to give GAF the Roofer’s two (2) year guarantee applicable to said work or job, as provided for in said form ‘Notice of Completion.’ . . .
“10. If the Roofer shall have an opportunity to bid on any roofing job requiring a surety bond and the use of specifications different from any of those contained in the ruberoid specifications BOOK, he agrees to bring the same at once to the attention of GAF in writing for such action, either through the use of a revised specification, or otherwise as GAF may consider advisable in the mutual interest of the Roofer and GAF.
“11. It is hereby mutually agreed that failure on the part of the Roofer to comply with any of the terms, covenants, or conditions of this agreement shall in cases relieve GAF of any and all obligations whatsoever to give the bond herein referred to on any job or work coming within the terms of this agreement. . . .
In order to qualify for a bond pursuant to the bonding program set forth in the Approved Roofer’s Agreement, a roofer is required, inter alia, to send in a “Notice of Completion” form immediately upon the completion of any work coming within the terms of the agreement. One of the conditions set forth in the form is that a roofer agrees to make certain necessary repairs at its own expense for two years following the completion of the project in a manner that is satisfactory to GAF.
The plaintiffs introduced evidence for the purpose of showing how GAF promoted its bonding program. One such document was an internal GAF bulletin containing a “suggested letter” that GAF salesmen could send to architects extolling the virtues of the GAF roofing program which included “application by experienced, qualified roofing contractors,” as well as explaining some of the aspects of the bonding program. There was no evidence, however, that this suggested letter was ever received by the architect who designed the roof of the Wintonbury Mall or by the plaintiffs.
In addition, the plaintiffs introduced two of the Ruberoid Specifications Books referred to in this agreement into evidence. The first book was dated 1967, and the second book was dated 1969. 5 Both books contain thirty-five to forty pages of detailed recommendations and specifications regarding various roofing materials and methods of installation for different types of roofs.
The plaintiffs called as a witness Robert Berryman who was the director of operations for Construction
We now turn to the relationship between Potter & Carrier and the plaintiffs. The plaintiffs introduced into evidence three contracts entered into by these two parties to install the roof on three different sections of the Wintonbury Mall. The first is dated August, 1969. The second is dated October, 1969. The final one is dated June, 1970. Each of the contracts is printed on the plaintiffs’ forms. In addition, each contract calls for Potter & Carrier to furnish and install, inter alia, a “20 year Bonded Smooth Surface Roof.” There is no mention of GAF in any of the contracts. Prior to entering into these contracts, Potter & Carrier submitted three proposals to the plaintiffs. As do the contracts themselves, each of the proposals calls for a “20 year Bonded Smooth Surface Roof,” with no mention of GAF. Finally, the roof specifications in the architectural plans did not set forth “any particular brand of roof.”
One of the witnesses called by the plaintiffs was William Muller, an employee of the plaintiffs who took care of the contracts that were made for the Wintonbury Mall project. He testified that Jonathan Potter,
In regard to the relationship between the plaintiffs and GAF, there was no evidence that the plaintiffs had any direct contact with GAF prior to the construction of the Wintonbury Mall roof. 6 In fact, Henry Beckenstein testified that his first involvement with GAF was in 1974, and that he would have been “surprised” to hear that it had certain guides to the installation of their material. The plaintiffs knew of GAF from the representations of Potter referred to earlier. In addition, Potter & Carrier had installed a roof on another project being developed by the plaintiffs where they did receive a bond from GAF. The bond was dated March 10, 1970, although there was no testimony as to the actual date when the plaintiffs received that bond.
Finally, we must examine the events that occurred after the completion of the roof. On January 20,1971, Potter & Carrier sent a “Notice of Completion” form to GAF which, according to the Approved Roofer’s Agreement, was a prerequisite to a roofer’s obtaining a bond.
7
The following day an inspector for GAF, David Muller, filled out a “GAF Bonded Roof Inspection Report.” On March 8, 1971, two employees of GAF
After Potter & Carrier received the speed letter, Jonathan Potter informed William Muller, the plaintiffs’ employee, of the problems it had specified. Even though Potter & Carrier then fixed the holes in the roof,
On November 14, 1974, prior to the decision to replace the roof, there was a meeting attended by the plaintiffs, the plaintiffs’ lawyer, Leslie Nathan, Barnett and Cummings to discuss the problems of the roof including the failure by Potter & Carrier to apply a sufficient number of plies. Barnett testified that he informed the plaintiffs that although Potter & Carrier was a GAF approved roofer, GAF was not responsible for any of the problems because Potter & Carrier had never sent in a “Notice of Award” prior to starting the job and that no inspection had been made of the project while it was going on. Henry Beckenstein testified that he remembered “distinctly” Barnett’s telling them that Potter & Carrier was “an approved applicator” of GAF roofing materials. Attorney Nathan, who represented the plaintiffs, testified, however, that Barnett had indicated “that Potter and Carrier were approved agents for GAF in the installation of their designed roofs . . . .”
As was previously noted, after the jury had returned a plaintiffs’ verdict on the theory that Potter & Carrier was GAF’s agent, the trial court directed judgment notwithstanding the verdict in GAF’s favor pursuant to
On appeal, the plaintiffs claim that there was sufficient evidence for the jury to find an agency relationship on the basis of either of the aforementioned theories. The claim under each doctrine will be addressed separately. The plaintiffs also claim, however, that the jury could have found an agency relationship on the basis of the doctrine of implied ratification. The short answer to this claim is that the trial court never instructed the jury on implied ratification. The plaintiffs have hot raised any claim of error in regard to the charge. Hence we will not review it.
Lee
v.
Lee,
“Agency is defined as ‘ “the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .” Restatement (Second), 1 Agency § 1.’
Turning to the facts of the present case, we cannot conclude that the trial court erred in determining that there was insufficient evidence to create an agency relationship between GAF and Potter & Carrier. In this regard, we look first to the Approved Roofer’s Agreement to determine whether there was a manifestation of consent by GAF that Potter & Carrier should act on behalf of GAF and subject to GAF’s control and the consent by Potter & Carrier so to act.
See McLaughlin
v.
Chicken Delight, Inc.,
supra, 322. In so doing, we note that the agreement must be interpreted as a whole, with all relevant provisions considered together.
Lanna
v.
Greene,
The first element is the right to control the day-today work of the alleged agent. The plaintiffs rely heavily on paragraph 1 of the agreement as giving such a right to GAF. That paragraph provides, in pertinent part, that “GAF agrees to sell to the Roofer and the Roofer agrees to purchase from GAF, at such prices and upon such terms and conditions as may ... be established by GAF,.such . . . materials as may be required by the recommendations applicable to the particular specifications selected by the Roofer . . . .” This clause is simply an agreement to buy and sell materials. The only way its interpretation could even possibly be expanded to implicate a right to control is
In paragraph 5 the roofer “agrees in all cases to provide suitable equipment and to employ sufficient experienced workmen to carry on the work without undue delay and in such manner as will enable GAF to inspect such work with a minimum of expense.” Reading the agreement as a whole, however, it is clear, both from the agreement itself and the Ruberoid Specifications Book, that the inspection is part of the GAF bonding program. If the roofer elects not to seek a bond, therefore, this provision in the agreement from GAF need not be followed.
Finally, paragraph 11 provides that a failure by the roofer to comply with any of the terms of the agreement relieves GAF of the obligation to issue a bond. No other powers or rights are afforded to GAF. For example, GAF has no right to replace one approved roofer with another on any particular project. See generally
Aweida
v.
Kientz,
An examination of some of the other factors utilized in determining whether an agency relationship could reasonably be found to exist further indicates that the agreement between GAF and Potter
&
Carrier falls short of establishing such a relationship. There is no evidence that GAF controlled either the instrumentalities or place of work. In fact, the agreement anticipates
Finally, there was also no evidence that GAF owned Potter
&
Carrier. “Independent ownership of a substantial enterprise is an important factor to be considered on the issue of control. An independent owner is less likely to submit to the control of others in the operation of its business than a non-owner.”
Ortega
v.
General Motors Corporation,
We have noted that the labels which the parties attach to their descriptions of their relationship is not a conclusive factor. In this case, however, where the provision in the agreement disclaiming an agency relationship is consistent with the provisions of the rest of the agreement, that statement can and should be given credence as indicative of the intent of the parties.
One last aspect of this agreement should be noted. The agreement does anticipate some element of control by GAF but only under certain circumstances. These circumstances are limited only to those instances
In their brief, the plaintiffs cite four factors which they claim the jury could properly consider in order to justify a finding of agency. The first was an alleged declaration by Barnett in November, 1974, that Potter & Carrier was the “approved agent” of GAF. The plaintiffs did not, however, introduce any evidence demonstrating that Barnett had the authority to make such a statement which would be binding on GAF. There was evidence that Barnett was a technical supervisor for the northeast whose responsibilities included, inter alia, educating salesmen to handle any job or problem too large or complicated for the man in the territory and to make architectural calls. This evidence, however, does not establish any authority to make a statement concerning the legal relationship between GAF and a particular roofing contractor. See, e.g.,
Morse
v.
Consolidated Ry. Co.,
The second factor cited by the plaintiffs is that GAF did not send a notice to the plaintiffs regarding the find
The third factor cited by the plaintiffs likewise provides no support for their position. They claim that Barnett, a representative of GAF, inspected the roof at a time in 1974 when it knew that the roof could not be bonded. Accordingly, they assert that the only reason for doing so was that it knew it was responsible for the defective roof. The short answer to this claim is that Barnett inspected the roof pursuant to a request to do so by the plaintiffs’ attorney at that time.
Finally, the plaintiffs claim that through GAF’s bonding program and sales advertising it was holding out its roofers as “experienced” and “qualified,” and that through contractors like Potter & Carrier, it was able to build a “nationwide bonding program.” The fallacy with this proposition is that it shows no evidence of GAF’s right to control the day-to-day work of Potter & Carrier. There can be little doubt that GAF receives a derivative benefit from this bonding program by having its products installed in a professional manner which, in turn, should induce other builders to install its products. The fact that GAF receives such a deriva
We conclude that the trial court properly determined that there was insufficient evidence to establish an agency relationship. The agreement between the parties gave no right of control to GAF over Potter & Carrier’s day-to-day activities and there was no indication of a mutual assent by the parties to establish an agency relationship. In this situation, the specific provision disclaiming such an intention was entirely reasonable and consistent with the rest of the agreement and the evidence. In addition, although an agency relationship need not be established by an express agreement, the circumstantial evidence presented in this case provided an insufficient substitute. See
Cafeterias, Inc.
v.
System-Master, Inc.,
The plaintiffs’ second theory on appeal is that there was sufficient evidence presented in this case to justify a jury’s finding that Potter & Carrier was the “apparent” agent of GAF. “ ‘Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.’
Lewis
v.
Michigan Millers Mutual Ins. Co.,
In the present case, there is no evidence that the plaintiffs entered into the agreement with Potter & Carrier on the basis of any action or statement by GAF that Potter & Carrier was its agent. The only evidence that was introduced that was related to this issue was the fact that the plaintiffs received a bond from GAF for another roof that Potter & Carrier had installed for a project being developed by the plaintiffs. There was no evidence, however, that the plaintiffs relied on this bond as evidence that they were dealing with an agent of GAF. In addition, Henry Beckenstein testified that his first contact with anyone from GAF was in 1974, over three years after the roof had been completed. Under these circumstances we cannot conclude that the trial court erred in determining that the plaintiffs failed to establish that Potter & Carrier was the apparent agent of GAF.
There is no error.
In this opinion the other judges concurred.
Notes
The plaintiffs have not appealed the jury’s finding on their strict liability count.
The first interrogatory, which was answered “yes,” stated: “Was Potter & Carrier the agent of GAF?” The second interrogatory which was answered “no,” stated: “Was GAF liable on strict tort liability?”
In the event that this court determined that there was sufficient evidence of agency to support the jury’s verdict in favor of the plaintiffs, GAF briefed two claims of error arising from the trial court’s charge to the jury. While there was a dispute between the parties as to whether these claims were properly before us, our conclusion that the trial court was correct in rendering a judgment notwithstanding the verdict makes it unnecessary to consider these particular claims.
In addition to the 1969 agreement, the 1964 and 1973 “Approved Roofer’s Agreements” were introduced into evidence. The plaintiffs’ brief states that all the agreements are “similar.”
There was testimony that “typically” GAF put out a new Ruberoid Specifications Book each year.
GAF introduced into evidence a letter dated July 19,1974, sent by Leslie Nathan, the plaintiffs’ attorney at that time, to Potter & Carrier’s attorney requesting the latter to provide them with “information as to what company or companies or system or systems were used for the roofs . . . .” On cross-examination Nathan admitted that at one point in 1974 he was not “aware that GAF was involved at all in this matter.”
Apparently, however, a “Notice of Award” form indicating that Potter & Carrier had won the Wintonbury Mall project was never sent in to GAF.
The plaintiffs also claim that we should reinstate the jury’s verdict on the theory that GAF so “insinuated” itself into the transaction between the plaintiffs and Potter & Carrier that they should incur any of Potter & Carrier’s liabilities. Besides the fact that the authority cited by the plaintiffs for this proposition is inapposite to the facts of this case, this theory was never presented to the jury and, therefore, we will not consider it.
Machiz
v.
Homer Harmon, Inc.,