Norwich bulletin., 1920-08-10
JUDGE HINMAN'S DECISION
 WAS APPEALED BY PLAINTIFF

Through an error. it was stated in Mondays issue of The Bulletin that
 the defendant. The Shetucket Coal & Wood Company, in the case of Lewis M. Young against the company, had given
 notice of an appeal from Judge Hinman's decision, under date of July 18th. 1920,
 to the supreme court. The fact is that the notice of appeal was given not by the defendant, The Shetucket Coal and Wood Company but by the plaintiff,
 Lewis NJ. Young
 In this action, which was the last case 1 tried before Judge Hinman extending over two or more court weeks in Jund
 and July, Mir. Young claimed his com plaint, through Desmond and James as his attorneys, a total of $11,669.06 the
 claimed balance due for the construction
 of the concrete coal pocket on the land
 of the Shetucket Coal & Wood Company
 on the basis of cost plus fifteen per cent. The defendant company through
 Brown & Perkins and Joseph T. Tanning it's attorneys, fn it's defense, claimed
 that the structure was erected under and in pursuance of written contract al the agreed price of S15.100. and that all of said sum, except $3.35O had been paid to the plaintiff on account of said contract. In it's answer, the defendant stated that it had rendered the sum of 53.350 to the plaintiff in full satisfac-
 ton, but that this amount had been re-
 fused. In his memorandum of decision Judge Hinman sustains the main con-
 tention of the Shetucket Coal and Woods
 Company, as follows:
 Under the pleadings as amended and the facts as developed by the evidence this action is proprly to be regarded as
 one in which the plaintiff seeks to re- cover upon claimed termination of the original contract by a refusal on the part of the defendant to allow work
 nnder it to proceed. and the substitu- ton of a new contract, by agreement.
 for construction of the coal pocket ac-
 cording to plans as changed from the
 original by or at the instance of te-
 fendant's engineer and upon basis. as to compensation, of cost plus a reasona-
 ble profit In order to recover upon such substituted contract the plaintiff must establish an agreement by the de- efndant to such substituted contract or
 conduct on it's part from which assent
 thereto may fairly be inferred This
 has not been done in this case Not
 only has plaintiff failed to establish
 Cor to clain) a new express agreement,
 but it does not satisfactorily appear that. if plaintiff. as he claims. demand ed change from a flat contract price
 to a costDlus basis as a condition of
 continuance of work under the changed
 plans, such demand and insistence
 thereon was so brought home to the defendant that assent to such changed cOmDensation can be inferred from the
 acquiesence of the latter in such con-
 tinued work. Furthermore many acts
 of the plaintiff. including the manner in
 which he continued to keep his accounts
 relating to this work. rendering 2 BsD-
 arate bill for the extra excavation for
 and size of footings, acceptance Of pay
 ment therefor, the times. at and grounds
 upon which payments on account were
 requested and received and their coinci-
 dence in amount with the payments
 specified in the original contract. ard
 the form of the receipts given, are in
 consistent with the existence of a substi-
 tuted contract on a cost-plus basis
 mutually understood and agreed upon
 The conclusion is reached that the changes in plans were accepted and ac-
 auiesced in by the plaintiff in further
 ance of his desire and intent to comply with the terms of his contract, together
 with some uncertainty felt, or doubt en- tertained as to the correctness of the calcula tons made by Mir. Young. upon which the original plans were based, and that they were so accepted by the plaintiff without regarding the original | contract as terminated by said changes modified as to consideration or com pensation. or suoerseded by new and different contract. At least no such 1 change was so made as to be binding upon the defendant Hence plaintiff is to be regarded as having constructed | the coal pocket under said contract and is entitled to recover only the balance of the contract price remaining unpaid, to wit: S335O together with such sum | as may be due him for extras properly chargeable as such in addition to the contract price. The tender of the bal ance due under the contract, alleged
 by defendant to have been made, is not proven"
 The judge accordingly give judgment for MT. Young to recover the S3,350
 above mentioned, plus S16O67 for cer- i tain extras, with interest from June 1st, l 1918, minus, however, the sum of $142.9S, allowed to the coal and wood company on it's counterclaim, making i the net amount of the judgment in the l plaintiffs favor s3S36.94
 The attorneys for the Shetucket Coal 6 Wood Company state that their cli- ent, as we'll as they, well satisfied with ] the judgment and will take no appeal