K. A. Thompson Electric Co. v. Wesco, Inc.

604 A.2d 828, 27 Conn. App. 120, 1992 Conn. App. LEXIS 117
CourtConnecticut Appellate Court
DecidedMarch 17, 1992
Docket9927
StatusPublished
Cited by18 cases

This text of 604 A.2d 828 (K. A. Thompson Electric Co. v. Wesco, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K. A. Thompson Electric Co. v. Wesco, Inc., 604 A.2d 828, 27 Conn. App. 120, 1992 Conn. App. LEXIS 117 (Colo. Ct. App. 1992).

Opinion

Foti, J.

The plaintiff appeals from the judgment rendered by the trial court for the defendant on the plaintiffs complaint for breach of contract.1 The plaintiff claims that the trial court improperly (1) found a condition precedent to the contract, (2) found that the defendant had made reasonable efforts to secure required approval, (3) found the contract not binding, and (4) failed to apply General Statutes §§ 42a-2-315 and 42a-2-712. We affirm the judgment.

The plaintiff, a subcontractor, commenced this action for breach of contract, alleging that the defendant supplier had failed to submit shop drawings and to deliver [122]*122pumps acceptable to engineers of a project in accordance with the provisions of a contract between the parties. The defendant filed a counterclaim seeking to recover the price of certain equipment sold to the plaintiff. The plaintiff and the defendant claimed setoffs in the complaint and counterclaim, respectively.

The court found the following facts. In 1986, the plaintiff, an electrical contracting company, submitted a bid to the general contractor, Associated Construction Company (Associated), to supply pumps and the pumping control system for a water pollution abatement project in New Haven. Associated’s specifications for the four raw wastewater pumps, § 16910, subsections 2.01 and 2.02, required 400 horsepower motors, having adjustable speed power drives with current source converters and power factor correction capacitors. In August, 1986, the defendant circulated its quote for the adjustable speed drives and process control panels to the plaintiff and other electrical contractors bidding on the project. The quote stated that the drives were controlled by its Accutron 300 controllers, which were specified as being adjustable voltage, rather than current source converters, and did not have power correction capacitors.

After obtaining quotes from other suppliers, including some in the range of $300,000 to $400,000, the plaintiff used the defendant’s quote in making its bid to Associated. Associated used the bid in its quote and was awarded a contract. Thereafter, the plaintiff and Associated entered into a contract in March, 1987. On May 13,1987, the defendant made a firm quote to the plaintiff for four 400 horsepower drives and one process control panel, “per 16910, §§ 2.01 and 2.02,” for $196,500, but in the technical comments of the quote noted that it was “quoting adjustable voltage controller in lieu of current controller. Power correction capacitors are not required in voltage controller design.”

[123]*123The plaintiffs president, Keith Thompson, met several times with the defendant’s representatives and was assured that the defendant’s pumps would meet the intent and the performance requirements of the specifications of the project. Relying on these representations, the plaintiff submitted a purchase order for the pumps and control panel to the defendant at the price quoted. Thereafter, the defendant signed a purchase order on its own form to the same effect. Both orders provided that the defendant agreed to be bound by all of the terms and conditions imposed on the plaintiff by the project specifications. Both orders also included the following language, which was drafted by the plaintiff: “This order is contingent upon the [defendant’s] providing all shop drawings and other engineering details required by said Section [16910] and their acceptance by the architects, engineers, planners and construction supervisors on the above job, CE Maguire, Inc., One Court Street, New Britain, CT.”

Over the next several months, the defendant submitted a series of shop drawings of the equipment referred to in the purchase order, all of which were rejected by CE Maguire, Inc. Conferences were held in an attempt to convince CE Maguire that the defendant’s Accutron 300 with adjustable voltage controller and without power capacitors could perform as well as or better than the pumps required by the project specifications. The defendant never provided backup technical information and empirical data to substantiate its claim that the voltage source drives would comply with the efficiency standards required in the specifications. The efficiency rating of the drives was crucial; if the drives used excess electricity, the utility company supplying the electricity to operate the pollution abatement machinery would assess the city of New Haven an additional charge and penalties.

[124]*124After the final rejection, Associated demanded that the plaintiff supply the equipment required by the specifications or Associated would hold the plaintiff in breach of contract. Under that threat, the plaintiff contracted with another manufacturer to supply the proper equipment for $304,475. The plaintiff then brought this breach of contract action against the defendant, seeking damages of $107,975, the difference between the subsequent contract price of $304,475 and the defendant's quoted price of $196,500.

In rendering judgment for the defendant, the court found that the contract between the parties was contingent on the performance of a condition precedent that required approval of the proposed equipment by the project engineers, and that because that condition precedent was not fulfilled, the contract never became binding on the parties. The court further found that the defendant had made reasonable efforts to fulfill the condition precedent.

The plaintiff first claims that the terms of the contract did not constitute a condition precedent, but rather defined the terms and standard for performance. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. Whether a provision in a contract is a condition the non-fulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). In searching for the intent of the parties as expressed in [125]*125a contract, the court must consider all relevant provisions of the contract together; Bialowans v. Minor, 209 Conn. 212, 217, 550 A.2d 637 (1988); the contract should be read in light of the circumstances surrounding the execution of the instrument. Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990). A contract is to be given effect according to its terms where the language is clear and unambiguous. F & W Welding Service, Inc. v. ADL Contracting Corporation, 217 Conn. 507, 517, 587 A.2d 92 (1991).

The trial court found a condition precedent from the language of the contract itself, the circumstances surrounding the execution of the contract, as well as the intent of the parties.

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Cite This Page — Counsel Stack

Bluebook (online)
604 A.2d 828, 27 Conn. App. 120, 1992 Conn. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/k-a-thompson-electric-co-v-wesco-inc-connappct-1992.