Opinion
No. CV054003262
January 23, 2007
MEMORANDUM OF DECISION
This is a contract action in which the defendant (Tindall) was hired to remove an existing roof on the property of the plaintiffs subrogor (hereafter, Klemm) and to install a shingled roof with aluminum drip edges. The written contract, executed by the parties on or about July 11, 2004, followed the defendant's written proposal #046 under date of February 24, 2004. The contract specifically provided Klemm would pay the total sum of $8,700 in three (3) equal installments (or $2,900) "1/3 down, 1/3 at halfway completed, balance on completion." Plaintiff's Exhibit 2. Klemm's insurer brought this action against Tindall in three (3) counts — breach of contract, negligence, and breach of implied warranty. Essentially, it alleged Tindall breached the agreement by failing timely to complete his work, negligently performed the work, and breached an implied warranty the work would be done in a professional and workmanlike manner. As a result, plaintiff claims interior damage to the building and its contents which required correction and that it was required to retain another contractor to complete the work; it expended a total of $6,975.77 (Plaintiff's Exhibits 9 and 10). The defendant has denied all such allegations and has asserted two (2) counterclaims, the first for breach of contract by virtue of Klemm's refusal to make the installment payments required by the contract and the second for unjust enrichment for work and materials provided without compensation. The matter was reached for trial on January 10, 2007. The plaintiff appeared through counsel and the defendant appeared pro se.
The court heard the testimony, weighed the credibility of the witnesses, and has examined the exhibits and applicable law. She finds the following facts to be true.
On the day after Klemm executed the written contract with Tindall, he — contrary to the terms specified in that agreement — sent Tindall a check for $4,350. Tindall accepted the check but noted the overpayment of $1,450. As work progressed on the roof, Tindall discovered the absence of plywood underneath a portion of the existing roof; this was not anticipated and not one of the services specifically provided for in the contract. He advised Klemm it would cost an additional $3,000 to purchase the plywood and lay it down of which Tindall agreed to absorb one-half that cost with Klemm to advance an additional $1,500 to accomplish the same. Klemm agreed and forwarded a check for $1,500 on August 20, 2004. One (1) day earlier, on August 19, 2004, Tindall wrote Klemm to advise him the work was "well passed (sic) the halfway point" and that the second installment was "now due so the job can proceed on schedule and in full force." Plaintiff's Exhibit 6. Tindall reminded Klemm he had overpaid the first installment "by $1,400" (It was, in fact, an overpayment of $1,450) and that Klemm should "keep that in mind when you pay the second installment . . ." Id. Klemm never made that second installment.
Tindall incorrectly stated the "total payment now due" was $3,000. It was, in fact, $2,900 which, in view of overpayment of $1,450 at time of first payment, meant Tindall was due and owing a second payment of $1,450.
Instead, when he sent his check for $1,500 to pay for the purchase of plywood, he inscribed on the bottom portion of the check the following legend:
Previously Paid: $4,350 + this check: 1,500 $5,850
Total completed price $10,700 - 5850 Balance upon completion $ 4,850
Defendant's Exhibit #5. There was no evidence Tindall ever saw the above legend; it is clear he never assented to the change regarding the three (3) installment payments. Thereafter, no further payments were made by Klemm. Tindall testified that, following his letter of August 19, he telephoned Klemm several times about the non-payment, left messages for him, and in fact spoke with Klemm's business colleague, Michael Conlogue, on several occasions. Relevant to this court's assessment of Tindall's credibility is the testimony of Mr. Conlogue on cross-examination that he remembered Tindall coming in to Klemm's business to let Klemm know another check was due but he did not specifically recall having been told of the specific amount due. In fact, Conlogue testified to then having in his possession a check for $4,350 (at odds even with the amount asserted on Klemm's legend on Defendant's Exhibit #5) but that he was not to pay over the check until David Klemm told him to do so. It is also relevant to this court's assessment of Tindall's credibility that Damian Prizzi, the general contractor Klemm hired to complete the roof and to repaint the building's interior, testified that, when he arrived on the scene in response to Klemm's call sometime in September of 2004, at least one-half of the roof work had been completed, all of the stripping with the exception of seven (7) shingle squares had been completed, and that he and his crews (2) quickly completed all of the remaining roof work and repaired interior ceilings and walls (not part of the contract between Klemm and Tindall). That letter advised Klemm he (Klemm) was in breach of the contract in that he had never made the second installment payment "despite several phone conversations, invoices and letters" regarding the same and that, given "no other choice," the contract was terminated. Defendant's Exhibit #3. The plaintiff insurer never called Klemm to testify at trial. Prior to Tindall's letter regarding Klemm's breach, however, Klemm wrote Tindall on September 8, 2004, terminating Tindall's work for failure to perform timely and to return "over a dozen telephone calls" by him and Conlogue over a "3-week period." Plaintiff's Exhibit #7. He went on — incorrectly — to state that he had already paid a total of $5,850 "on your agreement to complete the job for $8,700." That amount, however, included the $1,500 for plywood; it had nothing to do with the original contract price since it was in payment for materials and services never anticipated under the contract. The second installment payment called for by the contract ($2,900) — with credit for his earlier overpayment of $1,450 — was never made. Klemm's letter advised Tindall of water damage to ceilings and walls as a result of Tindall's "negligence," the cost of which repairs he would hold Tindall "responsible and accountable." He also warned Tindall not to "return to the property without written consent." Plaintiff's Exhibit #7.
To recover for breach of contract, a party must establish the formation of an agreement, performance by that party, breach of the agreement by the other party, and damages. See e.g., Fontanella v. Marcucci, 89 Conn.App. 690, 700 (2005), certification granted in part, 275 Conn. 907 (2005). Klemm cannot establish he performed under the contract because, despite request, he did not make the second installment. Nor has he established a breach by Tindall. The court rejects the argument by Klemm that he was in compliance because, as of August 20, 2004, he had already paid Tindall a total of $5,850 ($4,350 on signing — to include an overpayment — and $1,500 on August 20) since $1,500 of that amount was not payment "under the contract"; the contract didn't call for Tindall's laying of plywood and neither party anticipated the need to do so when the contract was formed. So, too, does the court reject the suggestion by counsel that Klemm's including of a legend on the stub of his check for $1,500 on August 20, 2004, constituted a modification of the contract. For a valid modification of a contract, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense. Herbert S. Newman and Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 761-62 (1996). There was no evidence Tindall ever consented to a change in the payment terms; in fact, he made clear he was looking for the second payment when he wrote Klemm on August 19, 2004. While assent to a modification can be inferred from the attendant circumstances and conduct of the parties (See e.g., Torgerson v. Kenny, 97 Conn.App. 609, citing to La Velle v. Ecoair Corp., 74 Conn.App. 710, 716.) Tindall's conduct permits no such inference. The second payment was needed to enable him to purchase the plywood. The labor intensive work of stripping the roof was almost completed when he made demand for payment of the second installment. Any claim by Klemm that Tindall breached because he failed "timely" to perform is unpersuasive since the contract provided no time within which performance had to be completed. See Segan Construction Corporation v. Nor-West Builders, Inc., 274 F.Sup. 691 (D.Conn. 1967), in which it was held that the plaintiff corporation contracting to do work under an agreement entitling it to receive installment payments did not materially breach the contract by stopping work in response to a payment dispute but that the defendant corporation materially breached the same by refusing to pay the amount due six days thereafter and thereby excused the plaintiff from further performance and entitled it to the reasonable value of services rendered. The law will not under the circumstances of this case give effect to Klemm's attempt to unilaterally modify the agreement. (This is in contrast to the parties' mutual agreement to reflect the need for the laying of plywood on a certain portion of the roof, the consideration for which was Klemm's payment of an extra $1,500 and Tindall's agreement to do that work. )
Tindall's testimony was that he agreed to lay the plywood without additional charge for labor but that Klemm's payment of $1,500 was necessary to purchase the plywood and that he had picked up and delivered the plywood to the site. The court found his testimony credible though he was without a receipt because neither Klemm's employee nor any other witness testified the wood had not been delivered.
Nor can the plaintiff recover under either the negligence count or the count for breach of an implied warranty. The claim here is that Tindall, when he left the job, did not properly prepare the roof to sustain the kind of water damage brought on by rain followed by wind. Tindall placed a tarp over the roof and photographs introduced at trial show the tarp(s) as well as the placement of objects at the tarp's edges to secure it. Defendant's Exhibits #1, #2. No expert was offered to instruct on the applicable standard of care. Though another construction person was called by the plaintiff, (he confirmed the presence of tarps) he was never disclosed as an expert — though he clearly could have been given his work in the contracting business for eleven (11) years — and he did not therefore offer testimony establishing industry standards or that Tindall failed to meet such standards. Tindall's testimony he had been in the roofing business for many years and "knew what he was doing on this job" remained unrefuted.
Finally, Klemm cannot recover under the breach of implied warranty count in the absence of any evidence his work — to include the placement of a tarp and his efforts to secure that tarp as protection from wind and rain — was less than professional or workmanlike.
Tindall's first counterclaim is grounded in contract. That there was a written agreement for $8,700 which did not specifically include the purchase and installation of plywood under a portion of the existing roof and that the agreement very specifically called for three (3) equal installment payments of $2,900 has already been found. The court finds the plaintiff failed to make the second installment payment despite Tindall's request for same and his readiness to undertake the final phase of the roofing work. When the plaintiff failed to make the second installment payment, he was in breach of the parties' written agreement. Crediting the plaintiff for the amount of the overpayment on the first installment — $1,450 — the defendant/plaintiff on the counterclaim has been damaged in the amount of $1,450 for work already completed. That failure to make the second installment was a material breach of the agreement. Whether a material breach occurred is a question of fact. De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424 (2004). The materiality of a contractual breach must be determined in light of the facts of each case in such a way as to further the purpose of securing for each party his expectation of performance. 609 Atlantic Street Ass'n. v. Atlantic-Rockland Stamford Ass'n., 43 Conn.App. 113 (1996), certification denied, 239 Conn. 949-50 (1996). There can be no question the parties intended the time for payment be a material condition of the agreement in view of the provision payment was to be made in three (3) installments.
Damages awarded in a contract action are intended to place the injured party in the position he would have been in had the contract been completed. Czaplicki v. Ogren, 87 Conn.App. 779, 791 (2005).
Tindall may not recover under his second counterclaim for unjust enrichment because "[u]njust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract." Russell v. Russell, 91 Conn.App. 619, 637 (2005). The contract remedy is here available to Tindall.
Judgment for the defendant/plaintiff on the counterclaim in the amount of $1,450 enters this date on the first counterclaim.
BY THE COURT,
Sheedy, J.