Charles Miller v. William J. Casey (2010)

MEMORANDUM OF DECISION

The plaintiff, Charles Miller, brings this action against the defendant, William J. Casey, alleging breach of contract for the defendant's failure to rebate a portion of the contract price.   The defendant denies the material allegations of the complaint and asserts special defenses of no agreement, ambiguity, failure of consideration, mistake and unconscionability.

The matter came before the court in January 2010 for a trial on the merits.   In addition to the plaintiff, Charles Miller, and the defendant, William Casey, the only other witness was Walter Currier.   The court finds the testimony of the plaintiff to be credible in part and not credible in part, the testimony of the defendant to be generally credible and the testimony of Currier to be highly credible.   The court has reviewed and considered the testimony, the exhibits and the parties' memorandum of law.   After applying the law to the facts, judgment enters for the defendant.

FINDINGS OF FACT

The plaintiff, a resident of New York, was the owner of a six-family residence on Short Street in Danielson.   In mid 2007, the plaintiff determined that the front porches on each of the three levels needed to be replaced.   Accordingly, he solicited bids from several contractors andultimately awarded the job to the defendant whose bid was $10,000 lower than any other.¹

Prior to submitting his bid, the defendant visited the job site and consulted with Currier, a builder with thirty-seven years experience.   The defendant determined that the size and the scope of the job required two or more people to safely complete it.²  Currier agreed to work for the defendant.   Accordingly the defendant included the cost of Currier's labor in his bid.³  The defendant additionally obtained an estimate of the costs of the necessary materials.   Finally, the defendant calculated his own labor at $10,500.   After negotiation, the parties agreed to a price of $31,250 which included all of the costs associated with the removal and replacement of the three porches.

Most, if not all, of the negotiations between the parties took place over the telephone.   After coming to a final agreement they agreed to meet to sign a contract and for the payment of a $10,000 deposit.   In the interim, the defendant memorialized their agreement on a form entitled “Contractor's Invoice” (the August 10 contract).   On August 10, 2007, the parties signed this document, but the plaintiff did not pay the deposit even though the work was scheduled to commence on August 13.   The plaintiff testified that over the next several days, he became concerned about what he perceived as inaccuracies and/or ambiguities in the August 10 contract.   As a result, he drafted another document (the August 13 contract) which incorporated most of the terms of the original contract, clarified some terms of the original contract and added terms not in the original contract.   The August 13 contract specified, inter alia, that labor costs were $10,500 and that materials and any other associated costs were estimated at $20,750.   Additionally, the August 13 contract added a new provision entitling the plaintiff to a dollar for dollar rebate if the actual expenses of the job were less than the defendant's estimate.

On August 13, the defendant arrived at the site with a small load of lumber to be used in erecting temporary posts needed to support the structure during the removal phase.   Shortly thereafter, the plaintiff arrived bearing the August 13 contract and a check for $10,000.   The defendant quickly reviewed the new contract, noted that the contract price appeared to be the same and signed it.

The job was completed on time and the plaintiff paid the contract price in full.   Thereafter, the plaintiff contacted the defendant's vendors and determined that the total cost of materials and rental of equipment had been $8,284.   Based on the rebate clause in the August 13 contract, the plaintiff therefore believed he had overpaid the defendant by $12,465.   The plaintiff made demand for this sum and when the defendant refused to pay, this action was commenced.   The testimony and evidence at trial indicates that the defendant's expenses totaled $21,460 for two laborers, materials and the rental of a dumpster.⁴  Accordingly, the defendant received $9,790 for his own labor.

Additional facts will be discussed as necessary.

DISCUSSION

The plaintiff claims that the defendant breached the contract of August 13 by failing to credit him with the difference between the estimated cost of the project and its actual costs.   The defendant denies that the plaintiff is entitled to any rebate in that the language in the August 13 contract is ambiguous and moreover, the defendant's costs equaled or exceeded the contract price.

“Ambiguous can be defined as unclear or uncertain.”  Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971).  “In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning ․ [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ [A]ny ambiguity in a contract must emanate from the language used by the parties ․ If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.”  (Citations omitted;  internal quotation marks omitted.)  United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670-71, 79 A.2d 546 (2002).

“It is generally accepted ․ that when two or more meanings may fairly be given to language in a contract, the language is to be construed against the one who drew it ․ and, likewise, the language of a contract is typically construed most strongly against the party whose language it is and for whose benefit it was inserted ․ Before this rule of construction may be applied, there must be a determination that the terms of the contract are actually ambiguous.”  (Citations omitted;  internal quotation marks omitted.)  Dainty Rubbish Service, Inc., v. Beacon Hill Assn., 32 Conn.App. 530, 533, 630 A.2d 115 (1993).

Conversely, “[c]ontract language is unambiguous when it has a definite and precise meaning concerning which there is no reasonable basis for a difference of opinion ․” (Internal quotation marks omitted.)  Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998).  “[A] court will not torture words to import ambiguity, where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 545, 791 A.2d 489 (2002).  “When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract ․” (Internal quotation marks omitted.)  Christian v. Gouldin, 72 Conn.App. 14, 20, 804 A.2d 865 (2002).

In the contract of August 13, the parties agreed that the contract price would be $31,250 of which $10,500 was attributable to labor costs and $20,750 was attributable to the estimated costs of “materials and any other associated costs.”   The parties further agreed that if the actual “expenses” for the project were less than estimated, the plaintiff would be entitled to a rebate.   The plaintiff and the defendant disagree as to which costs and expenses are covered by the contract.   Thus the resolution of the parties' claim rises and falls on the proper interpretation of “any other associated costs” and “expenses.”

Nowhere in the parties' contract are either of these terms defined.   In determining their meaning, therefore, the court is required to assign to these terms “their natural and ordinary meaning.”  Kelly v. Figueiredo, 223 Conn. 31, 35, 610 A.2d 1296 (1992).   The American Heritage dictionary defines “expenses” as “something paid out to attain a goal or accomplish a purpose” while “any” means “all,” “associated” means “an attendant circumstance” and “costs” means “an amount required in payment for a purchase.”

The evidence adduced at the trial shows that the defendant paid $7,063.46 for lumber, concrete and other supplies, $1,431 for the rental of a dumpster, $12,920 for Currier's and Clark's labor and $9,835 for his own labor.   It is beyond dispute that each of these expenditures was made to accomplish the goal of erecting three porches at the plaintiff's house.   Moreover it is also beyond dispute that each of these expenditures was reasonably related and associated with the accomplishment of that goal.   The natural and ordinary meanings of the terms expense and any associated costs, viewed in the context of the parties' agreement, are broad enough to encompass all reasonably related expenditures incurred by the defendant.   Since these total expenditures equaled the contract price of $31,250, the plaintiff is not entitled to a rebate.

Even if it could be said that the contract was ambiguous, the result would be the same.   When contract language is found to be ambiguous, extrinsic evidence may properly be considered to determine the parties' intent.  United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 675.   Additionally, it is well settled that the language of a contract is typically construed most strongly against the party whose language it is and for whose benefit it was inserted.  Dainty Rubbish Service, Inc. v. Beacon Hill Assn., supra, 32 Conn.App. 533.

The plaintiff claims that the phrase any other associated costs refers solely to any equipment rentals such as a dumpster or a backhoe and that the term expenses is limited to equipment rental costs plus the actual cost of the materials used.   The defendant, on the other hand, claims that the contract price includes all materials, the rental of any equipment, his employee's labor and his own labor.   He further claims that he acted, at all times, as if the contract allowed for these costs.

The plaintiff drafted the August 13 contract and he stands to benefit from his very restrictive construction of its terms.   The defendant, however, stands to forfeit $12,465 if the plaintiff's interpretation prevails.   The defendant credibly testified that the plaintiff was aware that the $10,500 figure set out as labor in the contract was intended to include only the defendant's own labor.   The evidence at trial also showed that on two or three occasions, the plaintiff observed Currier and Clark working at the job site.   Finally, the court finds the plaintiff's testimony, that he understood the $10,500 labor cost was intended to cover all labor associated with the project, to be not credible.

Based on the totality of the circumstances, it would be unfair to adopt the restrictive interpretation the plaintiff advocates when he himself was the cause of any ambiguity in the contract and when the defendant reasonably believed that all of his expenses were allowed by the contract.   Accordingly, the court concludes that to the extent the terms in the contract are in fact ambiguous, they nevertheless encompasses all of the defendant's outlays in the performance of the parties' contract.   The plaintiff, therefore, has failed to prove that the defendant's actual, total expenses were less than the contract price and that he is entitled to a rebate under the contract.

CONCLUSION

For the foregoing reasons, judgment enters in favor of the defendant.

PATRICIA A. SWORDS

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. See plaintiff's exhibit 4..  FN1. See plaintiff's exhibit 4.

FN2. The nature and scope of the work, including the necessity of supporting the each floor and the roof by use of jacks, necessitated more than one worker..  FN2. The nature and scope of the work, including the necessity of supporting the each floor and the roof by use of jacks, necessitated more than one worker.

FN3. Evidence at trial shows that Currier was paid $11,340 which was consistent with the figure Currier had given to the defendant..  FN3. Evidence at trial shows that Currier was paid $11,340 which was consistent with the figure Currier had given to the defendant.

FN4. In addition to Currier, the defendant employed Jay Clark on an hourly basis to clean up the construction debris.   Clark was paid $1,580..  FN4. In addition to Currier, the defendant employed Jay Clark on an hourly basis to clean up the construction debris.   Clark was paid $1,580.

Swords, Patricia A., J.