Capitol City Lumber Co. v. Sudarsky ( 1920 )

The remonstrance of the general contractor, Selitzky, is based on the failure of the committee to apportion the damages for defective work and materials among the several subcontractors whose work was found to be improperly done; and on the refusal of the committee to allow the general contractor interest on the balance found due to him. So far as the remonstrance is based on the ground first mentioned, it is demurred to because there was no issue raised between the general contractor and the subcontractors as to the amounts due the latter. As a matter of pleading that is true, but it is not in itself a good reason why the committee should not have determined the amounts due the several subcontractor lienors according to their deserts, for they put the merits of their respective claims in issue by asserting them. Nevertheless, the demurrer to this ground of remonstrance was properly sustained, for it does not appear that any evidence was offered on which the committee could have apportioned the damages for defective work among the defaulting subcontractors; and if it had so appeared, the general contractor's remedy for the omission of the committee to make any finding upon this evidence, would have been by motion to recommit.

As to the allowance of interest, the general contractor complains because he says that the owners have, since August 1st, 1916, been in receipt of the rents and profits of the building and ought equitably to be required to pay interest on the entire balance due to him, without deducting therefrom the amount due subcontractors. On the other hand, the owners claim that no interest at all should have been allowed to Selitzky, because the amount, if any, due him, was unliquidated until ascertainment by the report of the committee.

The contract, which is the uniform building contract, provides that "if at any time there shall be evidence of any lien or claim for which, if established, the owner of said premises might become liable, and which is chargeable to the contractor, the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify against such lien or claim." This authorized the owners to retain the aggregate amount of all liens of which the subcontractors had given notice; and, since interest is allowed by way of damages for the unlawful detention of money, none can be charged against the owners for a detention expressly agreed upon in the contract. It follows that the general contractor has no claim for interest upon the amounts rightfully detained by the owners to indemnify against the liens of subcontractors.

The remaining question is whether the court erred in allowing interest from the date of the completion of the building, on the balance found by the committee to be due the general contractor, after paying the liens of subcontractors. That depends on whether the general contractor's claim was unliquidated within the meaning of the rule that interest is not allowed on unliquidated claims. The rule has no technical significance. It is applied in each case according as the detention of money is or is not wrongful under the circumstances. Loomis v. Gillett, 75 Conn. 298,53 A. 581; Tucker v. Jewett, 32 Conn. 563. In Healy v.Fallon, 69 Conn. 228, 37 A. 495, a balance of $1,525 was held back because the owner claimed damages which were finally allowed in the sum of $50, and interest was allowed on the balance found due. In that case the claim for damages was within such narrow limits and its amount was so easily calculable, that it did not reasonably excuse the detention of the entire unpaid balance of the contract price.

In this case, however, there was due the contractor on the face of the contract when this suit was brought something over $20,000, and the complaint enumerates subcontractors' claims evidenced by mechanics' liens aggregating $27,955.62. By the terms of the contract the owners were expressly authorized to withhold this amount. And although some of these lienors have either abandoned their claims or been dropped as defendants since the action was brought, we think the amount due the contractor was unliquidated in the sense that the owners could not know how much, if anything, would ultimately be found due to the general contractor. Besides, that question was further complicated by the contractor's claim for extra compensation, which was disallowed, and by the owners' claim for damages, which was allowed in the sum of $3,300.

The judgment rendered in the court below is a personal judgment in favor of the plaintiff, the Capitol City Lumber Company, against the defendants Sudarsky. But no judgment is rendered in favor of the other subcontractors or in favor of the general contractor. As to them the validity and amount of each lien is adjudged, but no relief granted. We think the Superior Court may, in the exercise of its equitable powers, carry its decree into effect by judgments in favor of the respective lienors, and thus avoid the possibility of other litigations.

There is error on Sudarskys' appeal and the cause is remanded with direction to enter judgment against the defendants Sudarsky and in favor of each of the subcontractor lienors for the amount of principal and interest adjudged to be secured by his lien; and to enter judgment against the defendants Sudarsky in favor of the defendant Selitzky for the balance of the principal amount, without interest, remaining due to Selitzky under the contract, Exhibit 1.

In this opinion PRENTICE, C. J., and CASE, J., concurred.