2 Conn. Cir. Ct. 137 | Conn. App. Ct. | 1963
The finding, which is not subject to correction, discloses the following facts: The defendant is a builder of dwelling houses in Fairfield. On July 10, 1956, the plaintiff and the defendant entered into an agreement for the purchase and sale of a house, to be constructed by the defendant on a lot owned by it on Woodside Circle, at a price of $34,000. The contract provided that the septic tank system serving the house should be constructed in conformity with plans and specifications supplied by the defendant and the regulations of the health department of Fairfield. The plans supplied by the defendant to the Fairfield health department called for the installation of leaching fields consisting of a trench 150 feet in length and 2 feet deep. For its proper functioning, the sewage disposal system reasonably required leaching fields of these dimen
The following spring drainage water from the plaintiff’s washing machine began to back up through the septic tank system into the cellar of the plaintiff’s house. The plaintiff informed the defendant of this difficulty and the latter dug a dry well in an attempt to remedy the condition. There was no improvement following this attempt, and the defendant refused to do anything more, denying liability because more than a year had elapsed since delivery of possession. The plaintiff then consulted the Pierce Manufacturing Company, a contractor experienced in water and sewage work. The superintendent of the company inspected the premises, checked the health department records, observed that the installation as represented in the defendant’s application was adequate and, to relieve the soil saturation, recommended the installation of a curtain drain along the periphery of the plaintiff’s property for the purpose of intercepting surface water from the surrounding land. This was done at a reasonable cost of $685.55. The curtain drain did not remedy the situation. A representative of Pierce then excavated in three places along the line of the leaching trench as shown in defendant’s application filed with the health department. He discovered that there were only 52 feet of leaching fields instead of the required 150 feet. Pierce then
We have disregarded the numerous paragraphs in the finding, the motion to correct, and the corresponding references in the assignment of errors concerning inspections, or lack of them, by the building and health departments and the circumstances surrounding the issuance of the various permits. The present action is for breach of contract by the defendant for failure to perform. It is no defense to this action that there may have been negligent inspection by those departments or no inspection at all. Furthermore, the application signed by the defendant, exhibit D, expressly provides: “No oversight or neglect of duty on the part of the Director of Health or Sanitarian shall legalize the construction, alteration or repair of any sewage system in a manner not in conformity with the provisions of the Sanitary Code of the Town of Fairfield, or State of Connecticut.”
The defendant is willing to concede, as well it might, that a leaching field of fifty-two feet did not conform to the local regulations and that it was inadequate. The contract itself did not spell out the dimensions of the field; it did, however, provide that the sewage disposal system was to be “in accordance with the Fairfield Health Department.” The plaintiff had the right to rely on the defendant’s doing everything that was necessary to provide the plaintiff with an adequate sewage disposal system. The plaintiff’s contract was for a completed house, built on land then owned by the defendant. It was not for the construction of a house for and under the direction or control of the plaintiff on his own land. The defendant knew or should have known of the soil and water conditions on its land.
The main issue on this appeal is whether the trial court correctly applied the rule of damages. It is the defendant’s contention that recovery by the plaintiff cannot extend beyond the reasonable cost of installing the additional leaching fields to bring the total to 150 feet. This cost the court found to be $300. As to the amount allowed for the curtain drain, the defendant claims that the drain was neither within the contemplation of the parties nor a necessary or natural consequence of the defendant’s failure to perform.
The rule in eases such as this, in Connecticut and almost all, if not all, of the jurisdictions where the question has come up for review, is that the cost of completion or correction of the work rather than loss in property value affords the proper basis for
Damages, in eases like the one before us, are not determined on the narrow basis urged by the defendant. The rule is that the party injured by a default in performance of a contract is entitled to “that compensation which will leave him as well off as he would have been had there been full performance.” Sabo v. Strolis, supra, 506. The defendant constructed and sold to the plaintiff an expensive house. Impliedly, the contract included the undertaking on the part of the defendant that the facilities serving the house would be reasonably efficient and that the plaintiff should not undergo further outlay to correct or complete a faulty installation. Not only had the defendant failed to construct the sewage disposal system as agreed but, because of the defendant’s misleading representations, it was difficult to ascertain the cause of the obvious malfunctioning of the system. The leaching trench was an underground installation, and the plaintiff’s expert could reasonably rely on the defendant’s statement without verifying it through exploratory excavation.
The plaintiff, demanding recovery for all his expenditures, relies on the rule of damages which prevails in cases of tort arising out of injuries to persons or property because of negligent performance or failure to perform a duty imposed by contract. Compensation for injury in such cases is granted because the injury is deemed to have been
There is no error.
In this opinion Pruyn and Levine, Js., concurred.