Starkweather v. Goodman

48 Conn. 101 | Conn. | 1880

Pardee, J. A. D.

Smith made a written contract to furnish all materials and do all the work necessary for the construction of a house for the defendant according to definite plans and specifications and for a fixed sum. O. H. Easton, the ai’chitect who drew the plan, was by the contract made superintendent of construction, and all materials and work were to be accepted by him. Easton ordered Smith to make certain changes in and additions to the plan. It is not found that the defendant instructed Easton to make these changes, or that he had knowledge of them until completed. Smith made them and thus increased the cost and value of the house. When completed the defendant took and has since retained possession of it. The plaintiff as assignee of Smith brought this action for payment for the labor and materials thus ordered by Easton, and having recovered judgment therefor in.the City Court of Hartford, the defendant filed a motion for a new trial.

The contract sets forth the extent of Easton’s agency for the defendant; he is only to see that the materials and workmanship are in accordance with the specifications. There remained no opportunity to Smith to extend that power by inference, and when he furnished materials for or performed labor upon the house in excess of the specifications upon the order of Easton, he assumed the risk of ratification by the defendant.

Nor is the defendant estopped from insisting upon this contract limitation upon Easton by the fact that when the house was nearly completed he received in silence a statement of work and materials not specified in the written contract, ■which included some which he had not ordered; for these had been wrought into the building and were then beyond possibility of withdrawal by Smith, however strongly the defendant might have protested against payment for them. It is very clear therefore, that, as to these extras, Smith was not led into any action resulting in loss to him by the defendant’s failing to make the objection.

But it is said that other extras were afterwards ordered by Easton and furnished by Smith, and that, whatever might be the effect of the defendant’s silence upon the extras already furnished, he ought to be regarded, by reason thereof, as authorizing the extras afterwards ordered. But it does not appear that Smith at that time suggested to him that there might be other extras ordered by Easton, or that the matter was thought of by either of them. Besides, the question whether the defendant intended to influence the future action of Smith, or was guilty of such gross negligence that he could be chargeable with that intention, and the further question whether Smith was influenced by his conduct, were both questions of fact and not of law, and it is impossible for us to find these facts when the court below has failed to do so.

There is error in the judgment below, and it is reversed.

In this opinion the other judges concurred.