Genovese v. Winmore Construction, Inc.
Genovese v. Winmore Construction, Inc.
Opinion of the Court
The plaintiff brought suit to recover the balance due on a contract and for extras furnished. The defendant denied the allegations of the complaint, set up a special defense of breach
The facts may be summarized as follows: On July 29, 1964, the defendant, a general contractor, drew up an agreement, entitled “Purchase Order” and signed by the plaintiff, relating to certain work to be performed by the plaintiff upon property on Graham Eoad owned by the town of South Windsor and known as the South Windsor elementary school project and as the Eli Terry school project. The agreement required the plaintiff to strip and stockpile all loam or topsoil, to rough-grade the cuts and fills required to bring building and site to subgrades as shown on plans and specifications, and to clean out brush in accordance with the agreement with the defendant’s superintendent. The plaintiff commenced work under the agreement in the early part of August, 1964. In the latter part of August, 1964, footings and wall forms were installed and foundation walls were poured, forming the outer walls of the school building to be erected on this project. At
During the latter part of October and early part of November, 1964, the plaintiff, not having been paid in accordance with the terms of the contract, removed some of his equipment from the job. On November 6, 1964, the defendant wrote a letter to the plaintiff requesting him to return and finish his job or otherwise he would be held to have breached his contract, but no mention was made as to work within the walled area. The plaintiff did return and continued to work until early December, 1964, when he ceased all work. Certain “trimming up” work was left undone, and the cost of this work to the defendant was agreed upon. During the course of the plaintiff’s work, certain extras were done and
As to the wholesale attack on the finding, we cannot make any material changes which would benefit the defendant. Assignments specifying that the court erred in its findings and conclusions because there was not sufficient evidence to establish them, and the like, are improper. Atlas v. Whitham, 113 Conn. 791. This court may correct the finding only if “relevant and material facts have been found without evidence, or . . . such facts were admitted or undisputed and have not been found, or . . . facts have been found in language of doubtful meaning.” Practice Book § 985. A fact is not admitted or undisputed merely because it is uncontradicted. Mercier v. American Refractories & Crucible Corporation, 151 Conn. 559, 560. A motion to correct the finding by striking certain facts found is futile where those facts are supported by evidence, and facts are not added where they are neither admitted nor undisputed. State v. Coulombe, 143 Conn. 604, 609. Where, as here, there is conflicting evidence, the trier determines the credibility to be given to the testimony, and its finding of fact indicating the credibility of one witness rather than another is not ground for correction of the finding. Jarrett v. Jarrett, 151 Conn. 180, 181. Our examination of
There remains one further question which was raised at the trial and has been briefed by both parties, and that is the parol evidence allowed by the court as to the work to be done inside the walls. This we presume is covered by the defendant’s ninth assignment, which attacks the court’s conclusions as not being supported by the facts found, “as facts were erroneously found.” The parol evidence rule is a rule of substantive law rather than a rule of evidence. Shelton Yacht & Cabana Club, Inc. v. Suto, 150 Conn. 251, 255. If the evidence is admitted over objection or without objection, it still remains to be decided by the court whether under the circumstances of the particular case any agreement extrinsic to the writing, even if an agreement is proved, can legally be effective to add to, subtract from or vary the terms of the writing. Greenwich Plumbing & Heating Co. v. A. Barbaresi & Son, Inc., 147 Conn. 580, 588, 589; Nagel v. Modern Investment Corporation, 132 Conn. 698, 700. In the present case, we do not have the question of a new agreement but rather the meaning of the contract. The meaning of the terms of a contract as shown by the conduct of the parties regarding them is a proper consideration in the interpretation of the
The conclusions of the court are legally drawn from the facts found. To interfere with the conclusions would be to substitute different findings of fact. This cannot be done where there is evidence upon which reasoning minds might disagree. The case presented controversial issues of fact which were solely within the province of the trial court to decide. Katz v. Martin, 143 Conn. 215, 216.
There is no error.
In this opinion Kosicki and Dearington, Js., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.