18 N.Y.S. 429 | N.Y. Sup. Ct. | 1892
The action was on a building contract, to recover a balance of the contract price of building two barns, and the value of certain extra work and materials done and furnished by the contractors. The defendant, by her answer, denied that the contract had been performed according to its terms, and set up a counter-claim of damages for its non-perform-once. Among other deviations from the plans and specifications upon which the contract was based, it was conceded that the “collar beams” which should have joined together the tops of the two “purlin posts” in each bent of the-
We are of the opinion that the two findings, (1) of the defective construction of the buildings and the damages occasioned to the defendant thereby, .and (2) that they were constructed in substantial accordance with the contract and specifications, do not stand together; and that the two, taken together, do not support the conclusions of law that the plaintiffs are entitled •to recover on the contract. The entire contract price was $2,500, while the .allowance to the defendant for defective construction, in violation of the contract, with the value of the work in completing the buildings left undone by the plaintiffs, amount to the sum of $876, or more than one-third of the entire contract price. So far from being substantially in accordance with the -contract, this work seems to have been substantially in violation of the contract; and there is no rule of law which permits such defects and failures of performance to be disregarded in determining whether a contract has been ..substantially performed. So we said, in substance, in Oberlies v. Bulinger, .(Sup.) 11 N. Y. Supp. 264, and the failure of performance in that case was certainly not more substantial than in this. The eases, there cited, of Smith v. Brady, 17 N. Y. 173, and Glacius v. Black, 50 N. Y. 146, fully .sustain the conclusions in that case as well as that which we have reached in this. It is only technical, inadvertent, or unimportant omissions or defects which may be disregarded in an action on a building contract, (Sinclair v. Tallmadge, 35 Barb. 602;) and it may safely be said that no case has ever
The objection is suggested that the finding of substantial performance is a finding of fact, and not subject to exception. That finding, though coming under the heading of “Conclusions of Fact,” is manifestly a mixed conclusion of fact and law. In the case of Glacius v. Black, 67 N. Y. 563, it was held that the question whether a defect, not more radical or material than that disclosed in this case, constituted a breach of the contract, was not a question for the jury, but a question of law for the court. But, even if an exception did not lie to the finding denominated one of fact, the exception to the conclusion of law is sufficient to raise the question whether that conclusion is supported by the findings of fact; and, as already intimated, we are of opinion that the two findings of fact are inconsistent with each other, and that together they do not support the conclusion of law. The judgment appealed from should be reversed, and a new trial granted. Judgment reversed, and a new trial granted, with costs to abide the event. All concur.