Town of Stratford v. A. Secondino & Son Inc.
A party can waive a condition precedent in a contract. The Town of Stratford agreed to pay $4.8 million to A. Secondino & Son Inc. to construct a fire headquarters building. The parties agreed to increase the price to $5.5 million as a result of change orders. In July 2006, the defendant claimed that it had finished its work, except for $3,675 worth of punch work, and offered to promptly complete the punch work when $130,309 had been paid. In August 2006, the plaintiff municipality sued A. Secondino & Son, alleging breach of contract, because the defendant failed to correct portions of the building that did not conform to contract specifications. After negotiations in September, the defendant and its subcontractors allegedly returned to the job and completed, to the municipality's satisfaction, most of the items on the punch list. Allegedly, the municipality did not pay the $130,309 and proceeded with litigation. The trial court found that the contract was substantially completed in 2005, and that the municipality breached the contract and owed $136,510 in damages plus $39,000 in interest. The municipality appealed and argued that the trial court wrongly concluded that the defendant was not required to obtain approval of applications for payment from the architect, which constituted a condition precedent to payment. A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. The trial court found that the municipality waived the condition precedent when it began dealing with the defendant directly. The record supported the trial court's conclusion that the municipality waived the condition precedent. After April 2006, the municipality did not indicate that the defendant should submit applications for payment to the architect for approval or inform the defendant that the municipality would withhold payment, unless applications were sent to the architect. The architect's lack of involvement with punch lists, wrote the Appellate Court, supported the trial court's conclusion that the municipality waived the condition precedent. The Appellate Court also rejected the defendant's claim for additional prejudgment interest, pursuant to Connecticut General Statutes §37-3a.