93 N.Y.S. 231 | N.Y. Sup. Ct. | 1904
Plaintiff Meyer was a subcontractor and if his lien is valid the main questions here, as between himself and the owner, are whether there was anything due to Dali, the original contractor, pursuant to the terms of his contract, when the lien was filed and whether there remained, upon the completion of the work contracted for by Dali, any difference between the fair and reasonable cost of completion and the amount unpaid when the lien was filed.
Dali’s contract was “ for the complete erection of house
The contract, plans and specifications are to be read together and we find therefrom the contemplation of the parties; it was the erection and completion of a country house, with a stable, at Tuxedo. The contract was an entirety (Ming v. Corbin, 142 N. Y. 334), such being the intention of the parties, for the contract price included the house and stable as a whole and the payments were to be made on account of the whole work as it progressed, not for the house and stable separately.
Meyer, by three separate proposals dated respectively April 3, June 24, and September 28, 1901, which were accepted by Dali, agreed to perform and furnish “ at the J. Murray Mitchell house at Tuxedo, R. Y. * * * earth excavation, filling, furnish and lay earthen pipe around .foundation, furnish all stone, mortar and labor to complete the building (except the cut stone). * * * to receive and set all cut stone, terra cotta, limestone,granite and bluestone,coal-chute; to furnish material and labor for all concrete floors and deafening for hearth, furnish Lafarge cement as per specification in connection with stone work. * * * to grade bleaching yard and furnish material, remove all rubbish in connection with ” his “ work. Do all cutting for other mechanics and include all scaffolding in connection with ” his “ work ” for $12;,625, and extra for all “ rock excavation * * * One dollar and fifteen cents ($1.15) per cubic yard” and for
The work was entered upon early in April, 1901, a day or two after the offer of April third, and was continued by Meyer until Jxyie 4, 1902, when he stopped, having on June second received from Dali a telegram so to do.
Meyer’s three proposals must, I think, in view of all the circumstances be deemed an entire contract, more especially as between the owner and himself. From the evidence it would appear that Meyer and Dali so considered it; payments were made not for the work done and materials furnished on the stable and the house separately, but on account of the whole work performed, including for extras, as it progressed. Meyer first put in his proposal for the mason work on the house and while that was in progress made his offers, or bids, for doing the other work specified, whereupon the whole seems to have gone on as under one contract. If it was the intention of the parties that it should be so considered then that intention must be given effect (Johnston v. Dahlgreen, 166 N. Y. 354) and the proofs' lead to the conclusion that such was their intentiou.
Dali’s contract called for completion of his work by March 1, 1902. The stable was completed in May, 1902, but the house was not completed in June, 1902; "when the owner took upon himself the completion of the work. There
Winterbum, one of the “ architects, acting for the purposes of ” the “ contract as agents of the * * * owner ” and who’ had charge of and undertook the determining of the amount due and for which certificates should issue, testified, among other things, that when he went to make an estimate he “ thoroughly examined all through;” that he “ just' examined the whole thing, saw how much of that work was done;” that “he made particular examinations;” that they were “ keeping back 15 per cent, of the entire amount all the time
The estimate of March 26, 1902, was presented to the architects, and the witness Winterbum certified to performance of work calling for the tenth payment of $4,000, and thereafter certified to the last payment, that of May fourteenth, of $812.19, to pay workmen, whereupon the work was stopped, except some men Meyer still had at work.
Meyer was stopped in the further performance of his contract about June 4, 1902, at which time, allowing for his inability to have fully' completed his work because of the delays of other subcontractors, he had substantially performed his contract and may now claim to recover as against the owner upon a quantum meruit; equities which might have existed as between Dali and him cannot be availed of by the owner, for there is no privity of contract as between them. He did not abandon his work; he was stopped because of some default on the part of the original contractor and because of the action of the owner in undertaking the completion of the work by others than Dali.
The complaint alleges substantial performance; Dali is a party to the action and as conceded on the trial was served with the summons and complaint, as were all the other de- . fendants named. The owner only has answered and as to those who* have defaulted in pleading the allegations of the complaint must be taken as admitted.
Meyer’s contract with Dali was for the excavating, grading and mason work, exclusive of extras, for $18,625; the rock and earth excavation, which were extras, amounted to $1,187.45, and other extra work of the value of $1,687, as to which Ho question is.raised, was done, all amounting to $21,499.45. As said before' there was a substantial performance by Meyer of his work and an inspection of the
As stated before and as will appear from the architects’ certificates for payments upon Dali’s contract, if such payments represented eighty-five per cent, of the work actually performed then there was more than $9,000 earned by and due to Dali remaining unpaid at the time plaintiff’s lien was filed, and to that the lien attached, subject, however, to deduction if the amount remaining unearned should prove insufficient to meet the fair and reasonable cost of completing the Dali contract. If, as testified to by Winterburn, the amount theretofore paid, $52,455.45, represented eighty-five per cent. “ of the value of the work performed,” then the true value of the work theretofore done was about $61,712.29 and the fifteen per cent, thereof retained under the architects’ certificates amounted to about $9,256.84.
The Dali contract was for $74,319, and the extras, which included $1,029.63 for rock excavation done by Meyer and ordered prior to Dali’s suspension of work, amounted to $9,869.14, aggregate $84,188.14, and of this there remained $31,732.69 after deducting the payments of $52,455.45. Again, if the payments made represented eighty-five per cent, of the value of the work done, then we have a performance of about seventy-three and three-tenths per cent, of the work called for by the Dali contract, including the extras as aforesaid, and this accords with my judgment and conclusion, after
After Dali’s suspension and in August, 1902, the contract was entered into by the owner for the completion of the unfinished work called for by Dali’s contract, including materials to be furnished, also the completion of certain extra work theretofore ordered of Dali and for the replacement of any defective work on the building for $35,961.74.
If this contract price, $35,961.74, was, as the owner contends, the fair and reasonable cost of the completion thereof, then the work was, in June, 1902, but fifty-seven and three-tenths per cent, completed or sixteen per cent, less than contemplated by the architects’ certificates for payments, and the architects had certified to and had permitted actual over-payments of upwards of $4,200 to Dali. Can this be deemed' likely? In view of Winterburn’s testimony and the certificates of his firm I unhesitatingly answer that it is very improbable and I do not credit it, for while Winterburn testified that he made no measurements yet he examined the work as it progressed and “ knew the amount ” he “ certified to was not above 85 per cent, of the value of the work performed,” and that they “ were keeping back 15 per cent, of the entire work all the time on all the payments ” from month to month.
Payments under the contract of August, 1902, were to be made practically in the same manner as under the Dali contract, that is, monthly, eighty-five per cent, of the value of the work done, to be determined by the certificate of the architects based upon monthly statements, itemized, to be filed by the contractors, the remaining fifteen per cent, to await the final certificate, but with this further provision, i. e., that the sum of $5,000, a part of the contract price, was to be excluded in estimating such eighty-five per cent, of the value of the work so done and was to be included with the fifteen per cent, retained on all previous payments in the final certificate.
It was also therein provided that the contractor shall, before the first payment, “ cause to be delivered to the archi
All -who joined in the August, 1902, contract were subcontractors under Dali, though all of them had not filed liens; all of the lienors, excepting Meyer and Androvett, were parties to the contract and discharged their liens, while all of those subcontracting or doing work for Dali, excepting Meyer and one or two others, joined in or were represented in that contract for the completion of the work.
Appended to the August; 1902, contract is a memorandum
No estimates of the work done under that contract were submitted and no measurements were made by the architects; written requests were made to the architects for payment and they issued from time to time their certificates upon which $31,800 have been paid, though Randall testified that he had “ received $30,500 on account of the completion of the work,” and that $5,466.74 remained unpaid. The amount paid is much in excess of eighty-five per cent, of that contract price and that without excluding the $5,000 before referred to.
The difference between Ball’s contract price and the sum total paid to him is $31,732.69, while the agreed price to complete is $35,961.74, an excess of $4,229.05.
The defendant owner contends that that sum, viz., $35,961.74, is the fair and reasonable cost of completion, and that might obtain but for some facts which must now be considered.
It appears that when Dali suspended there was material on the premises; that that material, of the value of $3,000 at least, was used in the building, and that value was considered in the cost of completion. If that be so, and there is no contradiction, then it did not form part of the cost of completion. It had been furnished under Dali’s contract and had been delivered to be used in the construction of the house and stable.
Again, it appears that there was paid to the lienors joining in the contract for such completion thirty-eight per cent, of their liens. While I am. quite mindful of the attempted contradiction of such testimony, still taking the testimony of the witness Randall, at its true value, I am convinced that such payments were so made.
The liens filed aggregated $24,923.47, while those of
Again, many of the items of the extras, as they appear by the memorandum attached to the contract, had been completed before Meyer was stopped in his work; the testimony-leads to the conclusion that the items of the extra work so completed amounted to more than $3,500. The rock excavation, amounting to $1,029.63, had been done by Meyer; also the changing of stonework in piers, $185.02; of the fireproofing partitions and walls upward of $2,400 had been done and earned. Much more of the extra work had been done.
Deducting the value of the materials delivered to Dali and used as above, the thirty-eight per cent, paid to lienors and the $3,500 for extra work previously completed, from the August, 1902, contract price, we have $23,642.65 remaining, while the sum unearned of the Dali contract over and above the fair value of his completed work, if the architects’ certificates truthfully certified to the performance of eighty-five per cent. “ of the value of all labor and materials actually incorporated in the building” and for which amount payments were actually made was $22,475.85.
From all the evidence it appears that the reasonable cost •of completion, allowing for every consideration, was not greater than $25,000, which deducted from the sum remaining unpaid on the Dali contract leaves a balance of $6,732.69, to which plaintiff’s lien attached.
The lienor Meyer complied with every requirement of the statute, and the lien states all thereby called for. The work was done upon the property, as, a whole, toward the erection of a gentleman’s country house and] stable; the original contract was an entirety, and it is of no consequence here that the stable is on a lot not adjoining the lot tin which the residence stands, but close thereto; the contract called for the erection of a house and stable at Tuxedo, N. Y.
Judgment for plaintiff.