Greenwich Plumbing & Heating Co. v. A. Barbaresi & Son, Inc.
Greenwich Plumbing & Heating Co. v. A. Barbaresi & Son, Inc.
Opinion of the Court
The plaintiff sued the defendant to recover for the installation of a sprinkler system in a Greenwich school. The defendant was the general contractor. Its contract with the Greenwich board of education did not include the sprinkler system. The plaintiff was the plumbing subcontractor. Its subcontract with the defendant stated that the plaintiff would do the plumbing work, “including the Sprinkler System.” The plaintiff alleged that the system was included in its written subcontract upon the express oral agreement of the defendant that it would reimburse the plaintiff for the price of the system if the board of education paid the defendant for its installation as an extra which was not included in the general contract. When the defendant collected for the system as an extra along with other items not included in the general contract and then refused to pay the plaintiff, the latter brought this suit for the price of the system, that is, $4500, and for a balance of $302.67 due under the subcontract. The plaintiff recovered a judgment which, with in
The complaint alleged a breach of the oral contract under which the defendant was to reimburse the plaintiff for the installation of the sprinkler system. During the trial, the plaintiff amended its complaint by adding a second count claiming unjust enrichment. The defendant’s main contention throughout the trial and upon this appeal is that the plaintiff was bound by the terms of the subcontract, which specifically included the sprinkler system, and that it was error for the trial court to admit parol evidence to vary the terms of a written contract. The assignments of error are numerous. In addition to the errors claimed in the rulings on evidence, the defendant in effect seeks to have this court retry the case and revise the finding in accordance with the defendant’s theories. If, however, the parol evidence, to which the defendant made repeated lengthy objections, was admissible, the defendant will not be entitled to any correction in the finding, since the only claimed errors which are material consist of findings which are supported by that parol evidence.
The subcontract, which was dated August 6, 1954, but was signed by the plaintiff on October 19, 1954, provided that the general contract between the board of education and the defendant, including the conditions, plans and specifications, became a part of the subcontract between the plaintiff and the defendant ; that the plaintiff and the defendant agreed to be bound by all of the terms of the general contract, its conditions, the plans and the specifications, as far as applicable to the subcontract; and that the plaintiff was to furnish all the labor and material required to complete the plumbing, including the
Not only the general contract but also the plans and specifications, together with the addenda, became a part of the subcontract between the parties. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 5, 110 A.2d 464; Geary v. New Haven, 76 Conn. 84, 90, 55 A. 584. Plans and specifications show what a building contract really is. Cruthers v. Donahue, 85 Conn. 629, 631, 84 A. 322. As the subcontract itself included the sprinkler system,
The plaintiff also recovered a balance of $302.67 •due on its subcontract. Without pleading a setoff •or counterclaim in accordance with General Statutes § 52-96, the defendant claimed that it was entitled to a credit of $196.49 for work which it did hut which the plaintiff should have done under the subcontract. To take advantage of an offset, it must be pleaded. Cox v. Cronan, 82 Conn. 175, 177, 72 A. 927.
There is no error.
In this opinion Baldwin, C. J., and King, J., concurred.
Dissenting Opinion
(dissenting). The language of the contract was clear and unequivocal. By its terms, the plaintiff was required to “[fjurnish all labor and material required to complete the ‘Plumbing,’ including Sprinkler System.”
Early in May, 1954, the plaintiff submitted to the •defendant and several other general contractors an -estimate for the plumbing and heating work which was required for the erection of the school. At that time, the plaintiff had before it the plans and specifi■eations for the work. Included among the specifications were certain addenda which provided that the board of education would have the right to elect •between certain alternatives in respect to the sprinkler system. The defendant was the successful bidder, and the general contract was awarded to it in May, 1954. Later, the plaintiff and the defendant entered into negotiations concerning the execution of a subcontract for the plumbing and heating work. On October 19, 1954, nearly five months after the ■defendant had been awarded the general contract by the board of education, the plaintiff and the defendant entered into a subcontract under the terms of which the plaintiff agreed to furnish all the labor .and material necessary for the plumbing and heating work, including the installation of a sprinkler system. The plaintiff agreed to perform all of this work for a specified sum of money. It is true, as •pointed out by the majority, that the subcontract provided that the general contract between the board of education and the defendant, including the plans and specifications, should become a part of the .subcontract. But it also specifically provided that these plans and specifications became a part of the r-subcontract only so far as they were applicable.
Under the subcontract, the plaintiff was obliged
The so-called parol evidence rule is not a rule of evidence but one of substantive law. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851. While objection may properly be made to the introduction of evidence on the ground that its admission would be in violation of the parol evidence rule, the essence of the objection is that the evidence, if admitted, would be ineffective to determine the rights of the parties, because it could not legally affect their rights as defined in the written contract and so would be immaterial. 9 Wigmore, Evidence (3d Ed.) § 2400; Thayer, Preliminary Treatise on Evidence, p. 392. 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
Where, as bere, a written contract is clear, plain and unequivocal, it is not tbe province of tbe court to alter it by construction or to make a new contract, for tbe parties. Tbe court is confined to tbe contract itself, without regard to its wisdom or folly. Lakitsch v. Brand, 99 Conn. 388, 393, 121 A. 865. Tbe contract made by tbe parties bere was tbe repository of tbeir final understanding. Tbe parol evidence-should not have been admitted. Even though it was-admitted improperly, it should not now be considered to affect, alter or vary the terms of tbe contract. Nagel v. Modern Investment Corporation supra.
In this opinion Mellitz, J., concurred.
Reference
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