No. CV 06 5003057S
November 28, 2008
MEMORANDUM OF DECISION
This is a case involving a property owner turned general contractor who engaged the services of the defendant/electrician to do certain electrical work at a six-family residential property at 46 Jewelry Street in Waterbury, Connecticut. In effect the work encompassed rewiring and code compliance work to be done in an existing structure which was owned by the plaintiff and/or an LLC that was exclusively controlled by the plaintiff that went under the name of Cynat, LLC.
After a period of negotiations between the parties, it was agreed that the defendant would do certain electrical work to code standards and that he would be paid $18,500 for the labor and materials to upgrade the electrical service. The defendant received an initial $9,000 deposit from the plaintiff's LLC to start the work. The proposed written contract on a Stango Electric form (Exhibit A) was a barely articulable document which generally outlined what was to be done by the defendant. Eventually the proposed contract was signed by the plaintiff on July 21, 2005, but not countersigned by the defendant. Nevertheless, the Court finds that, based on the mutual assent and conduct of the parties, a contract did come into existence between the parties and consideration was exchanged although perhaps not to the liking of either party. Janusauskas v. Fichman, 164 Conn. 796, 804 (2003).
An "implied contract" is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances which develop between them. Schreiber v. Connecticut Surgical Group, 96 Conn.App. 731 (2006). The Court finds that certain obligations have been incurred by each party and that neither party is without fault in executing and carrying out their respective obligations under the so-called contract implied in part and expressed in part. Although the plaintiff has the burden of proof in this case, the Court will look to the equities between the parties to determine who shares the greater degree of fault in breaching the terms and intent of the contract.
The plaintiff never properly engaged an expert to establish whether or not 400-amp service was necessary for a six (6) family structure and what the cost to the plaintiff would be because the defendant had failed to install such upgrade under the contract or under the electrical code. The fact that there were further verbal negotiations between the parties concerning the final contract price and in the scope of work to be done by the defendant created an open-ended contract the terms of which were never credibly established either in writing or by the evidence.
When an ambiguity in a contract arises, "The determination of the parties' intent is a question of fact." David M. Sommers Associates v. Busch, 283 Conn. 396 (2007). There was credible evidence produced at trial that the plaintiff interfered with the timely completion of the defendant's work and that the defendant was in some ways hindered in its work by the plaintiff's failure to properly prepare the various units and to complete the demolition and removal work that would be necessary for the defendant to complete the rough wiring process.
The extent to which the 400-amp service was an absolute necessity in this particular structure was never established by the plaintiff by a fair preponderance of the evidence, nor was there sufficient credible evidence that the defendant breached the existing electrical and/or building codes within the City of Waterbury. The plaintiff does have the burden of proof in this matter and makes claim for such upgraded amp service into the building. The plaintiff's claim for loss of rents and punitive damages and attorneys fees have not been established by sufficient credible evidence nor does the Court find that there is any CUTPA violation established by the plaintiff nor any sort of civil theft claim that would warrant treble damages and/or attorneys fees to be awarded to the plaintiff. The fact that the plaintiff failed to clearly establish the terms of the contract written by him beyond that which the defendant actually did will be intrepreted against the plaintiff. Vigoreto v. Allard, 143 Conn. 70 (1955). To the extent that the plaintiff interfered with the completion of the work by the defendant undercuts any claim as to damages for breach of such contract by the defendant since those damages were not reasonably foreseeable nor were they established by a fair preponderance of the evidence by the plaintiff.
The fact that a Certificate of Occupancy was issued by the City for the indicated residential usages and the fact that the plaintiff was able to, in effect, recover from the sale of the subject property a substantial gain over his initial cost basis, to include whatever improvements were done by the defendant, would justify only nominal damages being awarded to the plaintiff if liability were found against the defendant.
The Court finds that this is in effect an implied contract existing between two parties who really did not know how to properly contract for the given work, but nevertheless proceeded with the work, perhaps not in the most workmanlike manner, but nevertheless achieved substantial performance and was paid what appears to be a fair and reasonable amount for those services and materials rendered. The Court finds that the more credible evidence weighs in favor of the defendant and that the plaintiff has failed to meet its burden of proof under Connecticut Law. Bearstein v. Nemeth, 221 Conn. 236 (1992); Frieda v. Smith, 142 Conn. 126 (1995).
Therefore, the Court finds all counts and issues in favor of the defendant, but no costs or fees are to be awarded to either party. Judgment enters accordingly in favor of the defendant.