123 N.Y.S. 976 | N.Y. App. Term. | 1910
The plaintiff has brought an action for the value of work, labor; and services which, he alleges, he rendered at the defendant’s request at divers times between the 15th day of March,
At the trial the plaintiff gave some vague and unsatisfactory testimony of the value of his services during the times mentioned in the complaint and then rested. Nowhere in the record are these services definitely described. Thereupon the defendant showed that it, as owner of certain patents and devices, .obtained contracts for the installation of the mail delivery apparatus in the three apartment houses mentioned in the complaint; that the plaintiff agreed to make this installation ; that the plaintiff did install a delivery system in each of the houses; that about March 5, 1907, it paid the plaintiff in cash and notes the full consideration for the installation; that the installation did not work satisfactorily, and that in May the plaintiff was notified that the defendant would hold him responsible for the defects, and from March 5 to October 30; 1907, he was notified several times that the apparatus was not working satisfactorily, and performed certain work upon it, apparently to meet these complaints. On October 30, 1907, the plaintiff wrote to the defendant that he had carefully examined the apparatus, and that it contained no defects due to his work, concluding his letter as follows:
“I will again state that, if I can be of any further service to you, I will gladly do so; but you must understand that I have fulfilled my contract in every respect, and any services rendered will be subject for an additional charge, as you cannot expect me to maintain, operate, and improve this apparatus continually without remuneration.” (Italics mine.)
This testimony is uncontradicted, and upon this testimony it seems to me that a judgment for the plaintiff is erroneous, regardless of the question whether or not the defendant has shown that the plaintiff’s vork was in fact performed in a negligent or unworkmanlike manner. While it is elementary that the law implies a promise to pay for work performed at the request of another, it is equally elementary that the
Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.
GIEGERICH, J., concurs. DAYTON, J., concurs in result.