154 N.Y. 707 | NY | 1898
Davis and Fay, contractors, on the 1st day of August, 1890, entered into a written agreement with the defendant Cook to erect two buildings for him on Dean street in the city of Brooklyn, to be completed on the 1st day of January, 1891, at a total cost of $6,381, payable in seven payments, the last amounting to $2,181.
Thereupon the contractors entered into an agreement with the plaintiff Beardsley to furnish them sash, blinds, glass and other trim to be placed in the buildings, aggregating in value $1,175.
In order to secure plaintiff, the contractors gave him an order upon the defendant for $1,175, payable out of the last payment to be made them. This order was duly accepted by the defendant.
The original contract between defendant and the builders provided that, if the latter refused or neglected to perform, the defendant could complete the work and deduct the expense from the amount of the contract.
It is admitted that the contractors failed to perform and the defendant completed the work at an expense of $677.17.
The course taken by this case at the trial only renders it necessary to determine under the proofs the balance of the last payment remaining in the defendant's hands after deducting the sum expended by him in completing the buildings.
At the close of the plaintiff's case, the defendant, introducing no evidence, moved that a verdict be directed for the plaintiff for the sum of $313.08.
The plaintiff moved for a direction of verdict in his favor *710 for the sum of $1,000, goods furnished the contractors, and $213 of interest, making a total of $1,213. The court thereupon directed a verdict in favor of plaintiff for the latter sum.
There was no motion for a new trial. A motion was made to dismiss the complaint, which was denied, and no exception taken.
It appears that after Davis and Fay failed to perform their contract, the defendant entered into a supplemental contract on February 2d 1891, with them, wherein he agreed to advance a certain sum, and they were to finish all outside work; all doors and sashes were to be hung in place, locks on and plumbing inclosed by February 10th, 1891, and in case they failed to perform, plaintiff was at liberty to complete the work.
The work continued under this arrangement until March 19th, when the defendant was obliged to complete the buildings.
It is undisputed that on the 18th of February, 1891, the defendant had completed the sixth payment under the contract, and had paid $50 in excess, so that at the time the contractors had finally failed in performance, February 10th, 1891, the defendant had unpaid in his possession, substantially the total amount of the seventh or final payment of $2,181.
It is also a very material fact that this supplemental contract in no way concerned the plaintiff, as it was a new arrangement between defendant and the contractors.
It also appears that notwithstanding the existence of plaintiff's accepted order on defendant, he continued to make payments to the contractors between February 28th and March 14th, 1891, aggregating a little more than $1,100, and which amounts were not due under the terms of the original contract.
It is by adding this amount to the sum actually expended by the defendant in completing the work that shows a balance of only $313.08 unexpended in defendant's possession and applicable to the payment of plaintiff's order.
On the contrary, the non-allowance of these unauthorized and undue payments shows a balance in defendant's hands of *711 the final payment, after deducting the amount expended by him in completing the work, of $1,503.83, or more than enough to pay the directed verdict.
The present appeal is from a judgment of affirmance by the General Term after a second trial.
The case was before this court on an appeal from a judgment of the General Term affirming a judgment at the first trial in favor of the plaintiff at Special Term.
This court reversed the judgment and ordered a new trial on the ground that the trial judge refused to find that the contractors failed to perform their contract, and also refused to find the amount expended by the defendant in completing the buildings, and held that plaintiff could only recover the balance in defendant's hands after he had been reimbursed the amount expended by him in completing the work. (
At the second trial this proof was supplied.
We are of opinion that the payments made to the contractors between February 28th and March 14th, 1891, by the defendant, as already alluded to, were unauthorized and not binding upon the plaintiff.
It follows that a proper disposition was made of the case by the trial judge.
The judgment appealed from should be affirmed, with costs.
All concur.
Judgment affirmed.
