53 N.Y.S. 1054 | N.Y. App. Div. | 1898
Lead Opinion
The plaintiffs in this action succeeded to the business of their father, Thomas J. Ellison, a steam and hot-water heating engineer, who in the fall of 1895 entered into a contract or agreement with the defendant to furnish and erect a hot-water heating apparatus in her dwelling house. The boiler and radiators were put in and connected up, and soon after Christmas, 1895, the fires were started, and the test was made, and, so far as the evidence shows, this test was satisfactory to all concerned. Although there is some evidence that the defendant found some fault with the heating apparatus, there is no evidence in the case to show that she ever repudiated the work, or that she ever ordered or suggested that it be removed. On the contrary, it appears from the testimony of defendant’s witnesses that the heating apparatus was still in her house, and that she continued to use it up to the very day of the trial of this action. In view of this fact, we are unable to reconcile the referee’s conclusions of law “that the said Thomas J. Ellison and the plaintiffs failed to perform said agreement with the defendant,” and “that the defendant is entitled to judgment against the plaintiffs dismissing the complaint, with costs,” with the evidence. We know of no rule of law which permits one person to allow another to enter upon his premises and put in machinery and apparatus for the benefit of the owner, accepting the use of the same, without being liable for the fair and reasonable value of such property. If the defendant had put in a counterclaim for damages due to a failure on the part of the plaintiffs to put in a heating apparatus according to contract, there might be some force in the finding of "the referee that “under said agreement said Thomas J. Ellison did put in said dwelling house a certain steam-heating apparatus and appurtenances, but the same were not capable of heating said rooms, or any of them, according to such agreement”; but what bearing this can have upon the case at bar, where the defendant has accepted and continued to make use of the apparatus after the alleged discovery of the defects, we are unable to understand. “If the fault was trivial, or of such a character as easily to be remedied,” say the court in the case of Chambers v. Lancaster, 3 App. Div. 215, 38 N. Y. Supp. 253 (Mr. Justice Cullen writing the opinion), “the defendant would be justified in using the machines, and not precluded from returning them upon the subsequent appearance or discovery of a gross defect that would render the machines useless, or materially impair their value. ■ But in this case, after the machines had repeatedly broken down in vital parts, and the inadequacy of the machines to perform the specified work had become apparent, the defendant company still continued to use them. This operated as an acceptance.” The like doctrine is asserted in the case of Wiles v. Provost, 6 App. Div. 1, 39 N. Y. Supp. 461, where the court say that: “The vendee is entitled to a reasonable time for examination, but, if he intends to reject the article furnished as not in compliance with the contract, he must not, after such examination, and after discovering its true condition, do anything inconsistent with the vendor’s ownership.” “He would,” say the court in the case of Brown v. Foster, 108 N. Y.
The judgment in favor of the defendant should be reversed, and judgment for the plaintiffs should be entered, with costs.
GOODRICH, P. J., and BARTLETT, J., concur.
Dissenting Opinion
This action is one to foreclose a mechanic’s lien. Before the plaintiffs are entitled to succeed in the action, they must show substantial compliance with the contract. Glacius v. Black, 50 N. Y. 145. An examination of the record, as I view it, shows that the court was justified in finding that the contract was in no sense performed. The testimony tended to establish that the heating apparatus was not sufficient, and did not answer the terms of the contract. Indeed, the testimony of Smith tended to establish that no contract was made with the defendant, of any character, but that he made the contract, and became responsible for its fulfillment, in consequence of which no debt existed in favor of the plaintiffs. The referee, however, seems to have disregarded this testimony, and ren- • dered his decision based upon the theory that the contract was not performed. It is not contended by the plaintiffs that they performed the contract which the testimony of Smith and Mrs. Creed tended to establish was made. The plaintiffs’ view is that they made no such contract, but that they had complied with the arrangement which they did make. The referee found that the plaintiffs failed in fulfillment of their contract, and I can see no view on which his conclusions can be disturbed as being against the weight of the testimony. The only
CULLEN, J., concurs.