67 A. 369 | Conn. | 1907
The plaintiff and defendant entered into two contracts for the erection of a brick apartment house by the former upon the land of the latter. The second contract provided merely for additions to and changes in the earlier one, and we may refer to them as one contract. The plaintiff claims that after he had nearly completed the building the defendant unlawfully ejected him from the premises and prevented his completion of the contract. He sues to recover the value of the labor and materials which he had furnished before he was ejected. The defendant admits that he ejected the plaintiff and terminated his employment under the contract, but claims to have done so pursuant to article five of the contract, and by his answer and counterclaim seeks to recover from the plaintiff the amount which the defendant has paid to another person to complete the building.
If the plaintiff, without fault on his part, was prevented by the defendant from completing the contract, he could treat it as rescinded and recover, quantum meruit, for the work and labor performed under it, or he could bring his action for damages against the defendant for breaking the contract and preventing the plaintiff's performance of it.Derby v. Johnson,
Article V of the contract reads as follows: "Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified by the architects, the owner shall be at liberty after three days' written notice to the contractor to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architects shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work, and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor, he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties."
This article contemplates that there may be a neglect or failure on the part of the plaintiff of such a character as not to constitute a sufficient ground for terminating his employment, and it also contemplates that there may *137
be such negligence or failure on his part as to constitute such ground and to warrant such procedure. In the former case one form of certificate by the architects and one course of proceeding by the defendant is provided for, while a different certificate and a different proceeding is provided for in the latter case. The plaintiff's negligence or failure might be of such a character as not to warrant either proceeding. Of this the architects were to be the judges, and to justify the defendant in taking either proceeding, and especially the harsh one of terminating the plaintiff's employment, taking his tools and materials and turning the completion of the contract over to a third party beyond the plaintiff's control but at his expense, the provisions of article five, strictly construed, should be strictly pursued. Wilson v. Borden,
The court correctly overruled the defendant's claim that, if the plaintiff was entitled to recover, "the measure of damages is that adopted in Pinches v. Church,
Had the plaintiff in the present case, instead of treating the contract as rescinded, sought to recover damages for the defendant's breach of it, a different rule of damages, but not that contended for by the defendant, would have applied. United States v. Behan,
The defendant alleges error on the part of the trial court in holding that he was not entitled to recover the items referred to in paragraph thirteen of the finding. But all these items were in effect allowed him in the judgment, except the loan of $462, which was not recoverable under the pleadings.
The remaining reasons of appeal need not be discussed, because their soundness depends upon the validity of the defendant's claims (already considered and decided adversely to his contention), that the action is upon the contract and that the architects were quasi judges between the parties and had given a certificate which warranted the defendant in terminating the plaintiff's employment.
There is no error.
In this opinion the other judges concurred.