Jones & Hotchkiss Co. v. Davenport ( 1902 )

The plaintiff alleged due performance of a written contract. The trial court has found that it was substantially though not fully performed. If so, the plaintiff, not being found to have been in wilful default, had a cause of action for the reasonable value of the work and materials so furnished, estimated with reference to the contract price, and to the resulting benefit to the defendant, provided she appropriated that benefit under circumstances sufficient to raise an implied promise to pay for it. Pinches v. Swedish Evangelical Lutheran Church, 55 Conn. 183;Jones v. Marlborough, 70 id. 583, 589.

The plaintiff finished the job (so far as it did finish it) more than a year before its complaint was filed. It added to the defendant's house what evidently must have increased its value, provided the plumbing introduced were left in proper working order. It was not so left; but all the defects could be remedied for $100, which was but a fraction of the contract price. It is true that they were such as, till remedied, made all the plumbing worse than useless, because it was a necessary source of danger to the health of those inhabiting the house. But so would it have been, had the soil pipe been accidentally left stuffed with shavings, which could have been removed in an instant. Potentially, the house was benefited by what had been done, and it might fairly be held that the contract was performed in substance though not in all its details. The question before us is not whether, as matter of law, the contract was substantially performed, but whether it could, as a matter of fact, reasonably be held to have been so performed. West v. Suda,69 Conn. 60.

Under these circumstances, the Superior Court was justified in refusing to allow the defendant to enrich herself at the plaintiff's expense. It may be that she could have had all that it had put in removed, as worthless in its existing shape. But, knowing, or having the means of knowing, that a comparatively slight expenditure would make it all that the contract called for, she allowed it to remain. This being so, the law implies a promise from her to do what she ought to do, and the judgment appealed from correctly measures her liability in this respect.

It is urged that the case made varies from the complaint. In the trial court there was a general claim of law that no finding of facts not alleged would support a recovery; but this was followed by the more specific claim that the plaintiff had failed to prove that it had performed the contract declared on, either exactly or substantially. The particular claim might properly be considered by the Superior Court as modifying the general claim, and withdrawing any objection which might otherwise have been raised on the score of variance, provided a substantial performance were made out. The court, having found that there was a substantial performance, was therefore justified in giving judgment for the plaintiff.

The contract required the plaintiff to "properly connect tank, boiler, range, wash trays, butler's sink and bathtub with galvanized iron pipe for hot and cold water, . . . all to be put in good working order." The defendant claimed on the trial that in order to make such connections for hot water in such a house, and with such an arrangement of faucets, and put all in good working order, it was indispensable to provide a "circulation pipe;" and offered the testimony of an expert to that effect. She had been present while the work was going on at her house, and had superintended it, but never before had suggested that there should be such a pipe.

Judicial notice could properly be taken by the Superior Court, both of what such a pipe is, and that none is ordinarily used in plumbing a house. Its office is to create a circulating current of warm water from the boiler to the remotest faucet and back again. The pressure from the tank or mains must always drive the water from the boiler along the usual connecting pipes towards such outlets as may be provided, although it may reach them more slowly and at a lower temperature than if a return current were secured. The contract, though quite precise and full in its specifications, did not call in terms for a circulation pipe. It was for the court to construe it, in view of all the surrounding circumstances, including the size and character of the house, and the conduct of the defendant; and, so regarded, the conclusion was warranted that it did not include putting in a pipe of that description.

Such a pipe may be a part of the plumbing to be put into a house, where the proprietor has stipulated for the introduction of the most perfect system and the most complete apparatus known to modern art; but it does not follow that it was required by the terms of the contract in suit.

Under the second count, certain charges were made for work done in connection with a furnace, which had been put into the house under another contract between the parties, for a stipulated price which the defendant had paid. Whether these charges were proper or not they had agreed, before the suit was brought, to leave to the determination of a third party, and he had given a decision in the plaintiff's favor. This, though an informal proceeding, was in law an arbitration and award, and conclusive, as such.

There is no error.

In this opinion TORRANCE, C. J., HALL and PRENTICE, Js., concurred.