27 N.Y.S. 356 | New York Court of Common Pleas | 1894
The complaint alleged the sale and delivery to the defendant between ¡November 1, 1890, and May 8, 1891, of certain merchandise consisting of doors, sashes, blinds, and other building materials, at the agreed price of $4,200, and of certain.
The appellant contends that inasmuch as the complaint alleges a cause of action for goods, wares, and merchandise furnished, merely, and does not expressly set forth that such claim is based on a written agreement, while the referee finds that whatever materials were furnished were delivered under a written contract at a fixed price, which provided that all the material should be delivered not later than the 30th of December, 1890, under a penalty for delay, and further found that some of the goods were furnished as late as the 6th of April, 1891, he erred in admitting evidence tending to show why the delivery was not completed within the time stipulated, the complaint not alleging any excuse for delay. This contention rests on Elting v. Dayton, (Sup.) 17 N. Y. Supp. 849. In that case, as appears from the opinion, the complaint alleged that on a certain date the plaintiff entered into a contract with the defendant to do certain work and furnish certain materials at a fixed price, and that he had fully kept and performed the contract, and had performed all the conditions thereof, on his part. The answer admitted the contract, which it alleged was in writing, and a copy was annexed thereto. The answer denied that the plaintiff had kept and performed the contract, or its conditions, upon his part, and then alleged, among other things, that the agreement provided the plaintiff would, on or before a certain date, complete his contract, under a penalty. On the trial there was no dispute but that the contract was not completed at the time fixed
“And the said parties of the second part hereby agree to commence furnishing trim on November 20, 1890, and to complete and fully furnish the entire contract not later than December 30, 1890, except they shall be delayed by reason of delay on the part of the party of the first part, and then only at such time later than said 30th day of December, 1890, as will be equal to the time delayed by reason thereof, and then the time extended for the completion of the said contract shall be equal to the actual delay caused by said party of the first part”
Beading the whole passage together, as we must, in order to ascertain its meaning, the intention of the parties, clearly, was that the plaintiff should have until the 30th of December, 1890, to complete the contract, plus such additional time as would lie equal to the delay caused by the defendant, if any. Viewed in this light, the testimony admitted under appellant’s objection was competent and proper, not to prove any waiver or modification of the contract on the part of the defendant, nor to excuse nonperformance on the part of the plaintiff; but to show. a performance by the plaintiff within the terms and conditions of the contract; in other words, to show how much the time limited in the contract had been extended by its own provision. This is the reverse of what was attempted in Elting v. Dayton, supra. It cannot be successfully argued that as the penalty for delay is inserted in the agreement after the provision for additional time in case the defendant-caused the delay, and the penalty clause contains nothing respecting such delay, the latter clause must control, and the defendant recover the penalty, for such a construction would put a premium upon the defendant’s own wrongdoing, and would be unconscionable.
“Those facts which the evidence on the trial will prove, and not the evidence which will he required to prove the existence of the facts. In other words, what the pleader is called upon to allege in the complaint is the substantive facts constituting the cause of action, and not the evidential facts from which the existence of the substantive facts is to be inferred.”
In the case under consideration the substantive facts are the furnishing of certain goods, wares, and merchandise to, and which were used in, defendant’s buildings; and these are well sustained by the evidential facts found by the referee, of the performance by the plaintiff of a specific contract at a fixed price, according to-its terms, as extended by reason of defendant’s delay. If we are-correct in these conclusions, it not only follows the evidence objected to was properly admitted, but the referee did not err in refusing to dismiss on the same ground which was the chief one argued on this appeal.
Another ground on which the appellant moved to dismiss the-complaint was that the plaintiff had failed to prove what goods or materials were furnished to the defendant, and used in the buildings on the premises. This may properly be considered with the exception to the tenth finding of fact, which is as follows:
“(10) That as to many kinds of articles included in said trim the plaintiff furnished on or prior to December 30, 1890, an ample quantity thereof to complete said building, and thereafter, at the request of defendant, made further delivery of the same kind of articles in excess of the quantity which, it should have been required to deliver.”
A bill of particulars of the defendant’s counterclaim was ordered by the court, and furnished by the defendant. From this-bill it will appear that, the entire alleged value of the goods fur
Another ground on which the defendant moved to dismiss the complaint was that the notice of lien was not filed within 90 days of the completion of the work. The testimony shows that the last item was furnished on the 6th April, 1891, and the referee has so found. The lien was filed on the 8th day of May, 1891,—much within the time limited by law for filing the same.
Defendant claims the plaintiff has waived any right to a lien because the contract proved on the trial showed that it was to take part payment in notes hating three months to run, and the last of which was not to be given until 30 days after the work had been fully completed, thus carrying it beyond the time when a lien could have been filed. It is a well-established rule in this court that taking a promissory note for the amount due does not deprive the claimant of his right to acquire a lien. The only effect is to' suspend its enforcement during the period for which credit is thus given. And the mere agreement to receive the note in payment does not deprive the plaintiff of his right to bring the action if such note was not delivered and paid when due. Miller v. Moore, 1 E. D. Smith, 739; Lutz v. Ey, 3 E. D. Smith, 621; Althause v. Warren, 2 E. D. Smith, 657. But it is unnecessary to discuss this subject further, as there is not a particle of proof in the case that the defendant ever gave or even tendered these notes. A mere agreement to take notes certainly cannot avoid the mechanic’s lien law, if the defendant willfully violates the conditions of the contract by refusing to give the notes.
The defendant objected to one of the witnesses for the plaintiff testifying as to what Simon Peyser had said in regard to the furnishing of materials and the cause for delay in the work, which was overruled by the referee, and he excepted. But the defendant had before that time testified that Peyser was his representative at the building; that he (defendant) did not exercise general supervision over the building, but the superintendent did, and that he told the defendant what was needed, and everything that was going on, who was furnishing the material right and who was not; that, while he (Eisenberg) gave some orders, Peyser had power to give them, also; that he himself never receipted for goods delivered, but that it was the duty of Eisenberg to do so; and that he was in charge there. It thus appears that the defendant himself relied
We have carefully examined the other exceptions taken by the defendant during the progress of the trial, but do not think there was any substantial error committed by the referee; certainly, none which could in any way have affected the result. The judgment should therefore be affirmed, with costs. All concur.