37 Conn. Sup. 712 (1981) | Cited 2 times | Connecticut Appellate Court | June 26, 1981

The plaintiff, engaged in the business ofconducting surveys of real property, broughtan action against the defendant, a landdeveloper, for breach of contract. The plaintiffclaims that the defendant hired it to set up andconduct a survey of a tract of land in Trumbulland then refused to pay for services rendered. Thecourt held that no such contract existed andrendered judgment for the defendant.

The plaintiff has appealed from this judgment,contending that the court erred (1) in findingthat Frederick Ehrsam, Jr., an authorized agent ofthe defendant, did not authorize the plaintiff tocommence a survey; (2) in holding that there was nocontract between the parties; and (3) in failing toaward the plaintiff compensation for work performed. Forthe reasons noted below, this court denies the first two

[37 Conn. Sup. 714]

     claims of the plaintiff and sustains its claim forthe reasonable value of its services in performinga portion of the work.

Unless a court's findings of fact are clearlyerroneous in light of the evidence and thepleadings in the record as a whole, they will notbe disturbed on appeal. Gilman v. Pedersen,182 Conn. 582, 585, 438 A.2d 780 (1980); StelcoIndustries, Inc. v. Cohen, 182 Conn. 561, 564,438 A.2d 759 (1980); Pandolphe's Auto Parts, Inc. v.Manchester, 181 Conn. 217, 221-22, 435 A.2d 24(1980). In the present case, the trial court'sfinding that Ehrsam did not authorize theplaintiff to complete a survey is consistent withthe testimonial evidence produced at trial.

Ehrsam testified that he instructed Joseph T.Kasper (of the plaintiff, J. & D. Kasper & Associates)"to proceed with the informational-gatheringaspect necessary for him to do, or completesurvey work so that he could give Mr. Kershner[of the defendant, Merrimac Associates, Inc.],a summary of what it was going to cost him, andhow long it would take . . . to do that work."Mr. Ehrsam expressly denied that he everinstructed Mr. Kasper to do survey work.

Kasper's testimony similarly reveals no basisfor the plaintiff's claim that Ehrsam authorizedthe plaintiff to complete the survey. Kaspertestified that work began as the result of atelephone call from Mr. Kershner to theplaintiff's office, not as the result of anyauthorization from Ehrsam. According to Kasper,Ehrsam's role was limited to pressing theplaintiff to complete the work. The court'sfinding that Ehrsam did not instruct Kasper to doa survey thus has ample support in the record, andwas properly made.

Whether a contract exists is a question of factfor the trial court to determine from all the evidencebefore it. Randolph Construction Co. v. Kings East

[37 Conn. Sup. 715]

     Corporation, 165 Conn. 269, 277, 334 A.2d 464(1973); Bridgeport Pipe Engineering Co. v.DeMatteo Construction Co., 159 Conn. 242, 249,268 A.2d 391 (1970); Molloy v. Rourke, 83 Conn. 196,199, 76 A. 517 (1910). The court's conclusions aretested by the findings and must stand unless theyare logically or legally inconsistent with thefacts found or unless they involve the applicationof some erroneous rule of law material to thecase. Hydro-Hercules Corporation v. GaryExcavating, Inc., 166 Conn. 647, 654, 353 A.2d 714(1974); Klein v. Chatfield, 166 Conn. 76, 80-81,347 A.2d 58 (1974); Brauer v. Freccia, 159 Conn. 289,293, 268 A.2d 645 (1970). In this case, thetrial court's conclusion that the parties had nocontract for a complete survey project islogically and legally consistent with the findings.

According to the court's findings, the factualsituation was as follows: On January 17 or 18,1977, the defendant, acting through Kershner,placed a telephone call to the plaintiff's officeand requested a specific written proposal of thetime and cost of the plaintiff's work. On January19, Kasper dictated to his secretary a writtenproposal for the survey project. The court heldthat this proposal was an offer, a conclusion theplaintiff does not dispute. Kasper testified thathe had no conversation with Kershner after January19, but nevertheless started work on the projecton January 21. On or about January 25, Ehrsamcalled Kasper and indicated that he had anotherten days to develop the required schedules. Thisconversation was held four days after Kasperclaimed to have begun work. Since it found noacceptance of Kasper's offer by the defendant, thecourt was correct in concluding that the partiesreached no understanding that would form the basisof a contract. See Bridgeport Pipe Engineering Co.v. DeMatteo Construction Co., 159 Conn. 242, 246,268 A.2d 391 (1970); Calamari & Perillo, The Lawof Contracts, 2-2, pp. 22-23 (1977).

[37 Conn. Sup. 716]

The plaintiff's final claim is that even ifthere was no express agreement to complete anentire survey, at least there was an agreement toperform preliminary work. The court found that Mr.Ehrsam "authorized the plaintiff to do researchwork and other preliminary work so as to make aproposal to defendant," and "did instruct theplaintiff to do a title search." There is no doubtthat the parties had an agreement regardingpreliminary services. The question is whether thisagreement can be considered as separate from themain agreement and afford the plaintiff a right tobe compensated for its services. We think that it can.

Ordinarily, a party's preparation forperformance of a contract is not compensableunless there was conferred a benefit on the otherparty to the contract. Santoro v. Mack, 108 Conn. 683,694-5, 145 A. 273 (1929); 5 Corbin, The Lawof Contracts 1107, p. 577 (1964). When theservices are performed at the request of theopposing party and in expectation thatcompensation would be made for them, or wereso made with the defendant's knowledge oracquiescence, however, recovery may be had withoutreference to the extent of the benefit conferredon the defendant. Santoro v. Mack, supra, 695;Butler v. Solomon, 127 Conn. 613, 615, 18 A.2d 685(1941); Clark v. Diefendorf 109 Conn. 507, 510,147 A. 33 (1929). The record in the present casereveals that the defendant either promised to paythe plaintiff for preliminary services or allowedthe plaintiff to proceed under the assumption thatthe services were to be paid for. Under thesecircumstances, the plaintiff was entitled toreceive the reasonable value of the preliminarywork which the defendant had requested, includingthe title search.

There is error. The judgment is set aside, andthe case is remanded for further proceedings inaccordance with this opinion.

In this opinion SHEA and DALY, Js., concurred.

1. Since July 1, 1978; the Court of CommonPleas has been merged with the Superior

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