## Facts

- Homeowners Robert and Caroline Strouth hired Pools by Murphy and Sons, Inc. to construct an in-ground swimming pool at their Connecticut residence.
- During precontract discussions, the homeowners selected from the contractor’s brochure a peanut-shaped pool with a circular six-foot interior spa and communicated that choice to the contractor’s salesman.
- The written contract described a “custom” pool of specified dimensions but did not expressly state “peanut” shape or the spa’s circular configuration.
- When excavation began, the contractor’s president showed a picture of a kidney-shaped pool and staked the excavation accordingly; Caroline Strouth objected that it did not match what she expected and was told it would look correct when finished.
- The contractor excavated a kidney-shaped pool and installed steel reinforcement outlining an almond-shaped spa rather than a circular spa.
- The homeowners directed the contractor to stop work for nonconformance and later rejected an offer to complete a kidney-shaped pool with a circular spa.
- The homeowners sued for breach of contract; after a bench trial, the court found a material breach and awarded $10,618.63 in damages.

## Issues

1. Whether constructing a kidney-shaped pool (and outlining a noncircular spa) instead of the selected peanut-shaped pool with a circular spa constituted a material breach of contract.
2. Whether the breaching contractor was entitled to restitution for excavation and preliminary work performed before the homeowners terminated the contract.

## Decision

- The appellate court affirmed the trial court’s finding that the contractor’s deviation in pool shape and spa configuration was a material breach.
- The court held that the term “custom” in the written contract was given definite content by the parties’ communications and course of dealing, which established the agreed-upon shape and spa design.
- The court affirmed the denial of restitution, concluding the trial court did not err in determining that the contractor’s nonconforming work did not warrant equitable compensation.

## Legal Principles

- Materiality of breach turns on factors including the extent to which the nonbreaching party is deprived of the reasonably expected benefit of the bargain and the relationship of the breach to the contract as a whole.
- Contract terms may be established or clarified by the parties’ communications and course of dealing when the written agreement uses general language and the evidence supports a specific shared understanding.
- A contractor who materially breaches may be denied restitution; restitution depends on equitable considerations and whether the nonconforming performance conferred a benefit that the owner may fairly be required to pay for.

## Conclusion

The court upheld judgment for the homeowners, concluding that constructing a materially different pool configuration defeated the central bargained-for feature and justified termination and damages, and that the breaching contractor was not entitled to restitution for the partially completed, nonconforming work.


Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 829 A.2d 102 (Conn. App. Ct. 2003)