30 Barb. 416 | N.Y. Sup. Ct. | 1859
We think the construction given by the referee to the contract, in regard to the time for the completion of the work, is erroneous. It is provided by the contract, that the work shall be done by the 20th of November, excejit some plastering, which was to be done after the 1st of December. The time was afterwards extended by párol to the 30th of November. The building was to be of three stories, with an election to the defendant to have a fourth story. It is supposed by the referee that, upon the defendant electing to have a fourth story, the contract became indefinite as to the period for finishing the job, in like manner as if no time had been specified in it. But we think this right of election could only be exercised while a reasonable time remained for adding a fourth story, and finishing the work with the addition by the time specified in the contract, or as extended. Unless exercised within that time, the defendant lost it. If within that time the defendant elected to have a fourth story, the }Dlaintiff was bound to construct it, and perform all the work, except the plastering, by the 30th of November. The time for completing the job was fixed in reference to all the work, including the fourth story, if that. should be determined upon.
Nevertheless, if the defendant assumed to elect to have a fourth story so late that there was not a reasonable time re-r maining to add that story, and have all the work done by the period named in the contract,, or as extended, and yet the plaintiff acquiesced in the election, the circumstances may have been such as to warrant the finding, that the parties mutually waived the stipulation in the contract as to the time when the work should be done.
There is no finding in the case, nor does the evidence clearly show, when the defendant undertook to exercise his right of election, or whether or not within a reasonable time to allow of the completion of the whole work, except the plastering, by the 30th of November; nor is there any finding whether the provision in the contract as to that time was waived by
The report of the referee is not in accordance with the rule of the court as to stating the conclusions of law and fact separately, and the printed case is defective in the same particular. But under the arrangement made by counsel at the argument, we should not send the case back for that reason.
The error in the construction of the contract is a material one, and we think calls for a reversal of the judgment, and a new trial, with costs to abide the event.
Judgment accordingly.
T. R. Strong, Welles and Johnson, Justices.