
    Andrew B. West et al. vs. Frank Suda.
    First Judicial District, Hartford,
    January Term, 1897.
    Andrews, C. J., Torrance, Fenn, Baldwin and Hamersley, Js.
    The failure of a party to a written contract to read it over a second time before execution, in order to verify erasures made in his presence and at his dictation, does not, as matter of law, preclude him from obtaining a reformation of the contract, if it is found by the trier that the mistake was not due to his negligence, but to the error of the scrivener in making the erasures.
    Whether a builder’s work is in substantial accord with his contract, is a question of fact. If such accord is found the owner cannot justify his termination of the contract on the ground of slight departures from the specifications; nor on the ground that the contract provides that all work must be done to the acceptance of the architect.
    Where a contract is reformed and damages are awarded for its breach as reformed, it is not necessary for the judgment to recite that the damages were given by way of equitable relief.
    [Argued January 14th
    decided March 23d, 1897.]
    Suit for the reformation of a building contract, for an injunction and for damages, brought to the City Court of Hartford and tried to the court, McManus, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant for alleged errors in the rulings of the court.
    
      No error.
    
    The plaintiffs are builders, and contracted with defendant to do the carpenter and mason work on a house to be erected for the defendant on his land. The complaint sets out in detail the contract; the facts showing a mutual mistake, in support of the claim to reform the contract; the facts showing a breach of the contract as reformed, and the extent of the injury so caused; and asks, by way of equitable relief, for a reformation of the contract, and damages. To this complaint the defendant demurred, and afterwards answered. Upon trial the court found the issues for the plaintiffs, and rendered judgment that the contract be reformed as asked, and for damages.
    It appears in the finding, that the defendant had procured plans and specifications to be drawn for building bis house, and the same were submitted to plaintiffs, who offered to build such a house for a specified sum; that this offer was not accepted, and that the defendant then asked the plaintiffs to make another estimate, excluding therefrom certain items specified in a memorandum prepared by the defendant; that the plaintiffs made such estimate, which was accepted by tbe defendant, and a contract between them executed in pursuance thereof; that when the parties met to execute the contract, Mr. West, one of the plaintiffs, read from the defendant’s memorandum the list of items agreed by both parties to be excluded, and Frank Suda, a son of the defendant, undertook to erase from the plans and specifications such items as they were read; that all parties believed that the same were all so erased, but by inadvertence Suda, Jr., did not erase some of the items read; that the contract plans and specifications were then signed, both the plaintiffs and the defendant believing that all said items contained in said memorandum and read to Suda, Jr., had been stricken out, and acting under this mutual mistake; that the plaintiffs had previously read and examined the plans and specifications, but did not re-read them after Suda, Jr., had made the erasures as aforesaid and before execution, and although they omitted to do so were not in fact guilty of negligence ; that the memorandum headed “ Things to be left out,” was taken away by the defendant or his son; that the defendant, without any ground under the contract as reformed, but claiming that the plaintiffs had not complied with the plans and specifications, ejected the plaintiffs and their workmen from the premises, took possession of the building, together with materials furnished by the plaintiffs, and has ever since held possession of the same; and that the damage to the plaintiffs amounted to $1,664.03.
    The contract contained a provision that the work should be done by the plaintiffs to the satisfaction of the architect named in the contract. The judgment of the City Court, as printed in the record, owing to a clerical mistake, did not conform to the judgment actually rendered. This error was rectified before the case was submitted on argument.
    
      The errors in law raised upon the trial, specified in appeal and claimed upon argument, are: The court erred, (1) in ordering a reformation of the contract; because upon the facts found there was no mutual mistake, and because the mistake was due to negligence in the plaintiffs in not reading over the specifications after alteration and before signature. (2) In rendering judgment for damages, because by the terms of the contract the work was to be done to the satisfaction of the architect, before the plaintiffs could recover thereon, and the contract was not performed to the satisfaction of the architect. (3) 111 holding that plaintiffs were entitled to damages by way of equitable relief.
    
      Joseph L. Barbour, for the appellant (defendant).
    
      Kdward B. Robbins and Greorge A. Kellogg, for the appellees (plaintiffs).
   HamersXiBY, J.

The provision in the contract that all work must be done to the satisfaction of the architect named, has no application to the question of damages caused by the defendant in wrongfully breaking the contract and preventing its execution. The defendant urges that it appears from the finding of the judge that the work of the plaintiffs did in some respects vary from the specifications; but the court expressly finds that the variations were not such as to justify the defendant in terminating his contract as he did. It is certain that not every slight departure from the letter of the contract, in work or material, would justify the action of the defendant in its termination. The plaintiffs’ substantial compliance with the contract is a question of fact on which the court has passed, and as to which no question of law is raised. The fact that the architect had the power to accept or reject the work, did not prevent the court from passing upon the justification of the defendant in terminating the contract. It does not appear that the rejection of work by the architect was the reason of the defendant’s action, or that any work had in fact been rejected.

The plaintiffs were entitled to ask a court of equity to reform the contract, and by way of equitable relief to give damages for a breach of the contract as reformed. Butler v. Barnes, 60 Conn. 170, 190. The court rendered judgment for a reformation of the contract and for damages for breach of the contract as reformed. It was not necessary, as the defendant in his brief seems to claim, that the court should recite in the judgment that the damages were given “ by way of equitable relief.”

In the appeal the overruling of the defendant’s demurrer is assigned as error. The defendant claimed nothing in argument on this ground; therefore, and because no doubtful question is involved, it is sufficient to say that we think the ruling correct.

We do not allude to each error claimed, as detailed at some length in the reasons of appeal, because no other question of law is raised by their assignment, and the counsel for defendant in his brief very properly declined to press any claims except those we have considered. ■

There is no error in the judgment of the City Court.

In this opinion the other judges concurred.  