123 N.Y.S. 310 | N.Y. App. Div. | 1910
The plaintiff pleaded full performance of his agreement witn defendant Annie Fox to build a house.upon land of which both defendants later became tenants by the entirety, and also indebted-, ness for extra work. The contract provided that the, plaintiff should build a house “in a good, workmanlike and' substantial manner, to the satisfaction and under the direction of James D. Fox, to be testified by a writing or certificate under the hand of the said James D. Fox.” The answer denies performance by the plaintiff- in several respects, and contains a counterclaim for damages. The court found due $170.65 foy extra work and $1;104 pn thp
The defendants and their attorney asserted that the work had not been done, and1 particularized. If such action or declaration be equivalent to refusal to pay, yet it does not follow that the production of a certificate was waived. It would have been at least illogical had they based a refusal to pay upon the ground that the work had not been done,, and also upon the ground that the certificate that such work had been done had not been furnished. It would be trifling to mention the stipulated evidence of completion while asserting no.n-completion. The plaintiff’s argument is that a refusal to pay is equivalent to an unreasonable refusal to give a certificate. If this position were tenable, plaintiff is not helped because he has not even alleged a refusal to pay. Hence there is no allegation of an unreasonable withholding of the certificate, nor of the alleged equivalent refusal to pay the amount claimed' due. Further
But there are further reasons for reversing the judgment. The contract provided that the work should be done under the direction of James D. Fox, the husband and agent, and later one of the owners of the property. It is objected-that the contract was not performed in many particulars. The original plans and specifications were modified by the parties before the Contract was made. The plaintiff alleges and the defendants deny that modifications were made subsequent to the contract. Some of the defendants’ objections relate to manifest departures, such as the length Oyf the building. The plans were modified so that there should not be a discrepancy of six inches in length between the two sides. The plaintiff urges that in carrying out this modification it was intended that the whole building should be forty-seven feet, while the defendants claim that the intention was that it should be forty-six feet and six inches.. This is a matter that must have been known to the superintending owner, and the finding favorable to the plaintiff should be sustained. The same may be said of the location of the building! The front of the house was set back several feet from the line indicated by the plans. The defendants could not have failed to know of this change, and there is no evidence of
The court has found that the contract required that the heads and 'sides of windows and doors should be but were not flashed with tin, There'should be either finding of waiver supported by sufficient evidence or allowance to be made for this item. There is much evidence tending to show the absence of proper and sufficient bridging, which should be carefully considered if a retrial be had. The court has allowed six dollars for failure to enamel the bathtub as required. . This item also shows non-performance of the contract. There is absolutely no evidence to show that six dollars is the proper allowance. It is claimed that it is so stated in the bill of particulars. The bill of particulars, although attached to the respondent’s reply brief, is not a part of the record. It is not necessary to discuss the weight of evidence as to other doubtful items.
The judgment should be reversed and a new trial granted, costs to abide the final award of costs.
Hibsohbeeg, P. J., Bttbe, Rich and Cabe; JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final' .award of costs.