Opinion
(2051)
On the defendant's appeal from the judgment for the plaintiff in its action to recover amounts allegedly owed it for the installation of heating and cooling systems for the defendant, the judgment was affirmed except that the amount of the damages was ordered corrected in accordance with a stipulation of the parties.
Argued January 5, 1984
Decision released April 10, 1984
Action to recover payment for materials furnished and services rendered, brought to the Superior Court in the judicial district of Hartford-New Britain at Hart ford and tried to the court, M. Hennessey, J.; judgment for the plaintiff, from which the defendant appealed. Error in part; judgment directed.
Edward J. McMahon, for the appellant (defendant).
Joel M. Ellis, with whom, on the brief, was Richard J. Seserman, for the appellee (plaintiff).
The plaintiff brought this action seeking to recover for materials furnished and services performed under a series of contracts for the installation of heating and cooling systems. The defendant raised two special defenses. He alleged that he had paid the amounts due on the invoices received from the plaintiff and he further alleged that one of the heating and air conditioning systems had been installed in a defective, faulty and unworkmanlike manner, that it did not work properly and that it failed to meet the level of efficiency impliedly and expressly warranted by the plaintiff. The trial court accepted as true the testimony of the plaintiff and reasonably concluded therefrom that the amount of money claimed was due and owing. That conclusion fully disposes of the defendant's claim of payment.
The defendant's other reason for appeal relates to the question of shifting the burden of proof where a plaintiff alleges performance of a building contract and the defendant pleads by way of special defense any claim of defect, impropriety or unsuitability in the work. Dubose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971). That question does not merit consideration because it appears that it was not raised in the trial court. See Practice Book 285A and 3063.
This appeal, originally filed in the Supreme Court, was transferred to the Appellate Session of the Superior Court, and was thereafter transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, 3(c).
As to the question of damages, we accept the parties' stipulation to a $481.30 miscalculation by the trial court. The amount actually owed to the plaintiff by the defendant is $6726.17 rather than the $7207.47 awarded by the trial court.