180 Conn. 545 | Conn. | 1980
The principal issue in this appeal is the lienability of a contractor’s work in road building and site preparation under the mechanic’s lien act before its 1974 amendment. The plaintiff, Pasquale Camputaro, also known as Pat Camputaro, doing business as Roma Construction Company, sued to recover for services rendered and materials furnished pursuant to an agreement with the corporate defendant, the Stuart Hardwood Corporation (formerly the Stuart Paley Co., Inc.). One count of the complaint sought damages under a bond given in substitution for a mechanic’s lien by the corporate defendant as principal, and by the individual defendants, Stuart H. Paley and Jerome L. Paley, as sureties. Three other counts sought damages from the corporate defendant alone for breach of contract, implied contract and quasi-contract. The defendants responded with a variety of defenses, as well as claims by way of setoff and counterclaim alleging defective performance by the plaintiff. The referee to whom the case was referred, Thim, J., rendered judgment for the plaintiff on the first two counts of his complaint and on the defendants’ set-off and counterclaim. The defendants’ appeal contests all aspects of the judgment except the ruling on the setoff and counterclaim.
The first project consisted of the completion of a roadway leading to the projected building site on the land. This contract was negotiated on February 17, 1974, and completed on March 1, 1974. A few days later, Camputaro billed Hardwood for $8910 and was paid in full. A second invoice, claiming an additional amount of $8511.85 for gravel furnished in connection with the road work, was disputed and has not been paid.
The second project involved preparation of the site for the proposed building. On March 1, 1974, Camputaro agreed to clear, grade and fill the land at and around the building site so as to create level ground, a smooth site, on which the building might be placed. Although his work included excavation, he was not hired to excavate for footings or for a foundation for the building. Between March and June 19,1974, Camputaro excavated about four and one-half acres of land for which he claimed entitlement to $130,098.50 for equipment rental, materials, supervision and insurance. Camputaro ceased working on the project in June when a disagreement arose about payment terms. At that time, Hard
After Camputaro ceased working on the project on June 19, 1974, Hardwood engaged in extensive preparation for an expanded site layout for its plant. A prefabricated building was acquired by the defendants and delivered to their property. There was, however, no evidence of any attempt to raise, erect or construct the building on the prepared site after it had been cleared. For reasons that the record does not clearly disclose, the defendants chose not to erect the building.
The plaintiff, Camputaro, on June 25, 1974, filed a mechanic’s lien in the sum of $118,566.36 for work done and materials furnished “in the construction of a certain building owned by said Stuart H. Paley and Jerome Paley.” The lien was refiled, on July 15, 1975, in conformity with the validation provisions of General Statutes § 49-35d
The defendants raise three issues on this appeal. (1) With respect to the first count, the action on the bond against all of the defendants, does the work done by the plaintiff qualify as lienable under the mechanic’s lien statute as it existed in 1974, before the amendments that went into effect on October 1 of that year? (2) With respect to the first count and the second count, the contract action against the corporate defendant, were items attributed to supervision, to a grader, and to insurance allowable under the contract? (3) With respect to both counts, were the damages awarded by the trial court impermissibly in excess of the amount demanded in the plaintiff’s prayer for relief?
I
The defendants claim that the work done by the plaintiff, Camputaro, does not entitle him to recover on the bond given in lieu of the mechanic’s lien. Obviously, the plaintiff’s rights on the bond can rise no higher than those acquired under the underlying mechanic’s lien for which the bond is merely a substitute. General Statutes § 49-37; Biller v. Harris, 147 Conn. 351, 353, 161 A.2d 187 (1960); Hartlin v. Cody, 144 Conn. 499, 505, 134 A.2d 245 (1957). Nor are the rights acquired by the initial filing of the lien substantively altered by its sub
Whether work done in furnishing materials and rendering services is work lienable under the mechanic’s lien act is a question that this court has addressed with relative infrequency over the past 120 years. We have never had the occasion to consider the lienability of road work and site preparation. Nevertheless, the principles that guide our interpretation of mechanic’s lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law; Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); National Fireproofing Co. v. Huntington, 81 Conn. 632, 634, 71 A. 911 (1909); see also Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937); its remedial purpose to furnish security for a contractor’s labor and materials requires a generous construction. Stone v. Rosenfield, 141 Conn. 188,
Camputaro’s work on the Paley property was performed at a time when the mechanic’s lien act made lienable “materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances . . . .” General Statutes §49-33 (Rev. to 1972).
This well settled interpretation of the mechanic’s lien act leads inexorably to the conclusion that lien-ability of Camputaro’s work cannot be sustained because the work was never incorporated in the construction, raising, removal or repair of any building or appurtenance thereto. Had the contemplated building been completed, had it even been begun, the test of Balch v. Chaffee, supra, and Marchetti v. Sleeper, supra, looking to whether the work done was a convenient necessity to the building’s construction, might well have brought the plaintiff within the ambit of the act.
It may well be that cases like this one led to the amendment of § 49-33. It is surely a hard result to have lienability turn on conduct of the owner of property that a contractor has no reason to expect and no power to control. Under § 49-33, as amended, the mechanic’s lien has been extended to encompass claims for materials furnished or services rendered
The unavailability of the mechanic’s lien to the plaintiff defeats entirely his claim to recover on the first count of his complaint. On the second count, relating to the liability of the corporate defendant, Hardwood, as a matter of contract law, two issues remain to be addressed.
The defendant contends that it was improperly assessed for three items of damages not contemplated by the contract. The agreement of the parties originally called for the work to be done on a daily basis with records to be kept by the use of daily tickets. The defendant claims it is not responsible for invoices submitted without daily tickets after the work on the site preparation project had been stopped. These invoices, amounting to $16,800 in the aggregate, covered supervision, use of a “grader” and insurance.
In order to sustain the defendant’s contention, we would have to ignore the testimony of the plaintiff
The defendant’s final contention is that a judgment in the amount of $110,048.76 plus interest is not sustainable in light of the ad damnum clause in the plaintiff’s complaint which sought damages in the amount of $150,000.
There is error in part, the judgment is set aside and the ease is remanded for the entry of judgment on behalf of all of the defendants on the first count of the plaintiff’s complaint.
In this opinion the other judges concurred.
The exhibits indicate that the defendant encountered zoning problems which prevented completion of the project.
General Statutes § 49-35d provides in pertinent part: “validation of lien recorded prior to April 22, 1975. (a) Any person who prior to April 22, 1975, placed a mechanic’s lien upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, which was not released or discharged on such date, may validate such lien by filing a new certificate of mechanic’s lien and serving a true and attested copy thereof pursuant to the provisions of section 49-34, and, if applicable, by serving the notice required by section 49-35, within ninety days from June 25, 1975, and such mechanic’s lien shall be deemed to have originated as of the effective date of the original mechanic’s lien so validated, provided, such validation shall not affect the interest of any person acquiring an interest in such real estate as an owner or mortgagee from April 22, 1975, through June 25, 1975, inclusive.”
General Statutes § 49-33 (Rev. to 1972) then provided in pertinent part: “mechanic’s lien, precedence, rights oe subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances, and such claim is by virtue of an agreement with or by consent of the owner of the land upon which such building is being erected or has been erected or has been moved, or of some person having authority from or rightfully acting for such owner in procuring such labor or materials, such building, with the land on which it stands, shall be subject to the payment of such claim.”
It is worth noting that in at least some of the out-of-state eases relied upon by the plaintiff to establish the lienability of site preparation, the building to be beneiitted was in fact constructed. Reid v. Berry, 178 Mass. 260, 59 N.E. 760 (1901); Southwestern Electrical Co. v. Hughes, 139 Kan. 89, 90, 30 P.2d 114 (1934). The third case, Green v. Reese, 261 P.2d 596 (Okla. 1953), arose under a wide-ranging statute expressly covering improvements, 42 Okla. Stat. § 141 (1951).
This amendment to General Statutes § 49-33 went into effect on October 1, 1974; see General Statutes §2-32; and the statute as amended provides in pertinent part: “mechanic’s lien, precedence, rights op subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or m the improvement of ary lot or in the site development or subdivision of any plot of land, and such claim is by virtue of an agreement with or by consent of the owner of the land upon which such building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for such owner in procuring such labor or materials, such building, with the land on which it stands or such lot or in the event that such materials were furnished or services were rendered in the site development or subdivision of any plot of land, then such plot of land, shall be subject to the payment of such claim.” (Emphasis added.)
Public Acts 1974, No. 74-310 expanded the scope of General Statutes § 49-33 to include the terms “the improvement of any lot” and “the site development or subdivision of any plot of land.” It is the first of these additions, “the improvement of any lot,” that is at issue in the present case. In commenting on an amendment to the bill, which was subsequently enacted as Public Acts 1974, No.
The judgment on this count fails to take into account the plaintiff’s right to recover for the unpaid amount due and owing on the road work performed for the defendant. In the absence of a cross appeal by the plaintiff, we are unable to correct what appears to have been an oversight.
The award of interest at the rate of 18 percent per annum from October 1, 1974, to the date of judgment brings the total award to an amount in excess of $150,000.