62 N.Y.S. 1115 | N.Y. App. Div. | 1900
The .plaintiffs were master plumbers and contracted with the defendant’s testator to do plumbing work in his house. After the work was' commenced it was discovered that quite extensive repairs were essential and necessary in order to properly do the-same. These alterations consisted eventually in the almost complete renovation of the house; the defendant’s testator directed the-plaintiffs to procure such work to be done, and under sucli direction the plaintiffs contracted with several different individuals and!
On the present trial the referee has found that $2,000, paid on the nineteenth, of February, the plaintiffs were at liberty to apply upon the item of plumbing 'work; that as to the other work it was divisible and separable from the plumbing, and that a recovery could be-had therefor. The result of the referee’s finding in this respect was to discharge by payment the -whole of the plumbing bill, excepting "a little over $500, and for the other items incurred upon the other contracts for which the lien had been filed, to allow a recovery; and he directed judgment in favor of the plaintiffs for such sum, and authorized judgment for the foreclosure of the lien which they had filed.
The defendant contests the correctness of this conclusion, and ■claims that, at the time when the payment of the $2,000 was made, it applied generally upon the whole account for all the items which were then rendered, and that as no direction was given, by the defendant’s testator when he made the payment, and as it did not
The evidence on the part of the plaintiffs tended to establish that objection was made by the defendant’s testator to the bills of the other contractors, but that no objection was made to the plumbing bill. While defendant’s testator was sworn, he did not deny that he made some objection to the mason’s bill; he could not recollect particularly upon that subject. Generally, however, he stated that his objection was to the entire bill as too large. It appears without dispute that subsequently he paid a number of the contractors the
It is further claimed that the plaintiffs are not entitled to recover for the other items in the hill, for the reason that in the incurring
There is some evidence in the case which would have authorized the referee to find that the relation existing between the plaintiffs and defendant’s testator, independent of the plumbing contract, was that of principal and agent. Such testimony, however, is not conclusive of the question. After the oral contract was made, which furnished authority for the- performance of the work aside from the plumbing, the defendant’s testator wrote the plaintiffs a letter in which he states: “ As I now understand our contract, your firm is to settle all the bills for work done under your direction, first, however, submitting them to me for approval, and I am to pay you.” This expressed his understanding of what the contract was, and the plaintiffs, by acting thereunder, adopted such understanding. The letter itself is somewhat ambiguous and may be subject to either construction. The acts of the parties thereunder become of controlling importance in its true interpretation. It appears that the plaintiffs evidently construed the contract as authorizing them to deal, independently of defendant’s testator, with the persons whom they employed to do the work. They contracted with such persons in their own name and assumed to be responsible for their compensation, and the contractors thus employed dealt with the plaintiffs as the principals in the transaction, and no one of them at any time looked to the defendant’s testator as being liable for Ms bill or had any negotiations with him whatever until after the work was completed. The defendant’s testator had notice of all of these facts, and, so far as appears, approved of all that was done in this connection. We think, therefore, that the referee was justified in finding that the relation was not that of principal and agent, but of employer
So far as the rulings made upon the trial are concerned* they are all proper, in view of the disposition which is made of the main contention involved. We find no legal error' therein.
The amounts which were charged for the work were the subject of contest, but this question was one of fact for the disposition of the referee, and we find that he legally disposed thereof.
It follows that the judgment should be affirmed.
All concurred.
Judgment, affirmed, with costs.