28 N.Y.S. 833 | N.Y. Sup. Ct. | 1894
In the complaint, as a first cause of action, it was alleged that the plaintiffs were copartners; that on the 2d day of June, 1886, they entered into a written agreement with the defendant to construct two three-story stores, except party walls, plumbing, and' painting, and to furnish the materials therefor, for the sum of $7,700, part of which was to be paid in installments as the work progressed, and at completion, upon the production of the architect’s certificate that the work was completed in accordance with the contract, the remainder was to be paid; that they performed such work on their part, and the stores were completed and accepted by the defendant; that she paid them the sum of $7,388.85, leaving unpaid $311.35. For a second cause of action it was alleged that on the 5th day of June, 1886, the parties entered into another written contract, whereby the plaintiffs agreed to do the area-wall work, plumbing, gas fitting, put down two wells, and furnish the labor and materials for all such work for the sum of $587; that they performed the contract upon their part, but that no part thereof had been paid. For a third cause of action the plaintiffs allege that between the 2d day of June, 1886, and the 10th day of December of the same year, the defendant became indebted to them in the sum of $9,494.26 for work, labor, and services rendered and performed and for materials furnished at her request, and for which she agreed to pay that sum; that she has paid thereon the sum of $8,595.91, leaving: a balance unpaid of $898.35, with interest from December 11, 1886, for which sum judgment was demanded. The defendant set up in her answer that all the work performed or materials furnished by the plaintiffs were furnished under written contracts which were entered into by and between the parties, and copies of which were made a part of the answer; that the contracts were not fulfilled by the plaintiffs, and by reason thereof she suffered damage to an amount greatly in excess of the amount claimed by them, which was set up as an offset or counterclaim. It was also alleged that she had paid the plaintiffs more than was due upon the contracts between them; that she was not indebted to them in any sum whatever; that certain conditions precedent to the plain
That the work was performed and materials furnished, for which this action was brought, were performed and furnished under the two written contracts between the parties, and in pursuance of their provisions, there can be no manner of doubt. Therefore, to a proper understanding of the questions involved on this appeal, it becomes necessary to examine some of the provisions contained in the contracts between the parties. The first contract between them, which was made June 2, 1886, provided that the plaintiffs should erect, finish, and deliver in a true, perfect, and thoroughly workmanlike manner the building mentioned, except plumbing and painting, agreeably to the plans, drawings, and specifications referred to, under the direction of Blend, who was an architect; the plaintiffs to furnish all the labor and materials, and to be paid therefor the sum of $7,700, which the defendant
The evidence of the defendant was to the effect that a portion of the work on this building was sublet without the written consent of the owner; that there was no hand rail along the stairway; that there was not a ventilating pipe in the building; that the two wells mentioned in the contract were not driven; that there were no-arches over the doors in the basement; that the plastering did not extend down to the floor, as required by the contract; that there was but one course of bridging of the joists, where the contract-required two; that the -area wall was not built in accordance with the contract; that no curb was put down as required; that the ■plastering was improperly done, and not according to the provisions of the contract; that the building was not of the height called for by the plan; that the wall was not laid level,, but the joists were blocked up with chips and pieces of wood; that a portion of the ornamental brick on the arches in front of the building was left out, and plain brick substituted; that the brickwork does not fit closely to the window frames; that none of the walls were plastered where the wainscoting was put on; that the mortar which was-used for the walls was poor, and improperly made, and that the walls were in no respect in accordance with the contract; that ' there were no clean-outs in the drain, as required; that the joists were not placed 16 inches from center to center, as required, but that they were in many instances from 18 to 19 inches from center-to center; that one door was omitted in the division wall in the basement; that the lumber used in the ceilings, wainscotings, and for finishing the building was Norway pine, instead of clear white pine; that there were 50 feet of partition omitted in the basement;, that the wall plates were hemlock, instead of oak; that some of the-
While there is a conflict in the evidence as to many of the omissions and changes claimed by the defendant, yet there are numerous instances where the undisputed evidence shows that the plaintiffs have not performed the contract according to its terms and specifications. A careful study of the evidence renders it extremely difficult to discover how it could properly be found that there was a substantial performance of their'contract by the plaintiffs. While the rule relating to substantial compliance with the terms of a building contract may have been by the later decisions somewhat relaxed, yet as it now stands we think that, where one enters into a contract to furnish materials, and perform work of a specified character, to be paid for on performance, although materials may be furnished and the work performed, still, if it is not done in the manner stipulated, no action will lie for the compensation, and that a substantial performance must be shown, unless it has been waived or released. The right of recovery will not, however, be forfeited by reason of technical, inadvertent, or unimportant omissions or defects. But where the defects are substantial and important, running through the whole work, and so essential that the purpose of the owner has not been accomplished, no recovery upon the contract can be had. Where, by a contract, it is stipulated that the materials shall be of the best or a specified quality,
The foregoing statement is based upon the evidence of the defendant as to'the work omitted, its cost, and the difference in the value between the materials and work as furnished and that called for by the contract. It should, however, be stated that, while many of the omissions referred to are conceded by the plaintiffs, their evidence as to the value of the work and materials omitted, and the difference between that furnished and agreed to be furnished, vary very essentially from that of the defendant. As to many of the particulars mentioned, it may, I think, be safely said that the question whether the changes and omissions occurred or were of the character and extent claimed by the defendant were questions of fact to be determined by the referee. There are, however, numerous instances in which there is no dispute as to the fact that the building was not constructed in compliance with the contract between the parties, and that by reason of the omissions or changes made in the materials and manner of construction the contractors were required to expend a much less sum than it would have cost them to build according to the provisions of the contract. As has already been intimated, it is extremely difficult to see how, under the circumstances of this case, and in view of the character and extent of the omissions and failures to perform the contract as shown by the evidence, it can fairly be said that there was a substantial performance of the contract by the plaintiffs. It may be, however, that the question was one of fact, and that the finding of the referee is sufficiently sustained by the evidence to be upheld. If, however, it were to be held that there was a substantial performance of the contract, the questions as to whether the plaintiffs were properly allowed for the extra work which they performed for the defendant, and whether the defendant was allowed a fair and reasonable valuation for the differences which should have been deducted from the amount of the contract by reason of the changes and omissions referred to, must still be determined. As we have seen, the contract provided that no work should be considered as
This brings us to the question whether the defendant was allowed a fair and reasonable valuation for the difference which should have been deducted under that part of the contract which provides that, where changes were made, the differences should be added to or deducted from the amount of the contract, as the case might be, by a reasonable and fair valuation. It seems impossible to read the evidence in this case without concluding that the defendant has not been allowed the deductions to which she was fairly entitled under this provision. As already pointed out, the omissions to perform the labor and furnish the materials in accordance with the contract were many, and the difference'in the cost essentially less, so that a fair compliance with the contract required the plaintiffs to make many substantial deductions. It is unnecessary to again call attention to these omissions and changes in detail. Among them will be remembered the change which allowed the plaintiffs to use Norway pine instead of good, clear, white pine, and the evidence which shows the difference to have been several hundred dollars. Attention may also be called to the omission to plaster behind the wainscoting, and the inferior plastering that was put upon the walls. If the defendant’s evidence is to be relied upon, nearly, if not quite, $2,000 should have been deducted from the contract price to give fair and reasonable effect to this provision. From a careful examination of the evidence, we are satisfied that the defendant has not
There was an issue between the parties as to one payment of $500. The defendant claimed that she paid the plaintiffs or the architect, who was their agent, $500 in cash, November 27th, and paid an equal amount on November 29th by the check of her hus
On the trial the following stipulation was made and entered in the minutes of the referee:
“It is stipulated that the referee may, at his convenience, at any time before the close of the testimony in this ease, or before the case is finally submitted, take with him a person of his own selection, and make an examination of the building in question, and that for the purposes of his decision in this case he may take into consideration what he discovers in making the said inspection; but this arrangement is not to be deemed as limiting either party in the further testimony which they shall give upon the trial of this action. Also that the referee shall make the inspection in such manner, and using such papers in connection therewith, as he shall deem necessary and -proper, each party to pay one-half of the expense of the person whom the.referee may select; and the expense of such person accompanying the referee shall be paid one-half by each party, to be taxed in with the referee’s fees.”
The referee, when he made his report, referred to such stipulation, and his proceedings under it, as follows:
“This action having been referred to me to hear and determine, and having heard the proofs and allegations of the respective parties, and stipulation having been made in open court before the close of the testimony, as appears at page 1871 of the stenographer’s minutes, that the referee might, before the cause was finally submitted, take with him a person of his own selection, to make an examination of the building in question, and that for the purposes of his decision in this case might take into consideration what he discovered in making the said inspection, and having made such inspection, and having designated, in pursuance of said stipulation, William H. Murphy, a builder and architect, of Cobleskill, N. Y., he, the said Murphy, and the referee, on or about the 25th of February, made an examination of said build
The inquiries referred to by the referee in his report were as follows :'
“Mr. Murphy, builder, etc.: In pursuance of stipulation made by the above parties in the above cause, I desire you to examine the Yagel building, in Oneonta, N. Y., with reference to the following points: (1) The walls,—rear wall, central wall, and the area wall; this last being wall under flagging in front of building, and between building and curb. In this I want your examination to be: Reference to quality of stone and brick used, as to construction, and as to whether the rear or middle wall has settled, and, if they have, state the cause. (2) As to blocks or • blocking under floor joists. If found, state extent, and what is used, why used, and effect. (3) Plastering. How many coats, whether properly put on, and material making plaster. (4) What is the difference in value, if any, in the Norway pine used, between that and pine called for by building contract? What is the effect of its use on the value of the building as completed? Examine contract and specifications, and then, from your examination of building, state whether, in the construction of the building and the materials, has there been a substantial compliance with the contract? If there has been a material variation in the construction of the building from that provided in the contract, is the building, as. it stands, better or worse by reason of it? What would this building have-been worth December 11, 1886, if built as provided for in the contract and specifications? What was it worth on that day, built as it was? Please answer the foregoing in writing.
“February 25, 1892. W. 0. Lamont.”
In compliance with this request, Murphy made, signed, and sent to the referee the following paper:
“To William C. Lamont, March 24, 1892. From William H. Murphy, as inspector on the Yagel block, in Oneonta, N. Y. I have examined the same, and find it: (1) I find that the foundation in under basement as a partition wall has cracked, and my best judgment is that the same has been undermined by excavation since the erection of the building, and allows the water to flow to and under the said wall, and comes from the embankment under basement floor causing the same. (2) The rear wall shows a crack to the end of iron girder. Is caused by the weather expansion ahd contraction,—by heat and cold,—but there is no settling whatever. (3) The area wall is perpendicular, and put up in a good, workmanlike manner, as such wall should be. (4) Stone and brick. Stone are limestone, as I call good and sound material. Brick are good, hard brick, and front is hard-pressed, and ornamented for-front. (5) As regard to the blocking under joist, I find blocks and furring under the same, both under party and partition walls. I do not believe that the same does any damage as to the settling, or any damage to- the building,, as it is customary to level up the timber in this way. (6) The plastering I find to be two coats; wall a green finish, and second coat skim finish’; a good, hard wall. (7) Interior finish between Norway and white pine. The-difference is of no account, except the Norway can be kept better and cheaper; and, as to quality, the Norway is No. 1, and is better than white pine, in- my mind. (8) In my examination of the building, I find that there has been changes from the contract in many details, viz. stairs, closet, and also material, and other changes. But, as a whole, the general erection of the building as to plans and specifications has been in good, workmanlike manner; and as to the value of the building in December, 1886, that the changes do not, in -my judgment, materially change it. Value: In other words, the changes in material and workmanship have not lessened the value of the building in December, 1886. From my examination T am led to believe the building has.
‘‘Cobleskill, N. Y., March 25, 1892. W. H. Murphy.
To expenses.................................................. 8 6 50
Two days examining building................................. 20 00
One day making out report..................................;. 10 00
836 50"
Whether the referee, in determining this case has relied entirely upon the report or opinion of Mr. Murphy, or somewhat upon the evidence taken before him, is not disclosed. That the unverified statement made by Murphy was considered by him, and to some extent made the basis of his decision, is to be inferred from his report. The defendant insists that the course pursued by the referee was illegal, and entirely unwarranted by the stipulation of the parties. That it was illegal unless justified by such stipulation, there can be no doubt. So that, in deciding this question, it becomes necessary to determine whether the referee was authorized by the stipulation not only to make an examination of the premises in the presence of a person he might select, but also to delegate the power to make such an examination to a third person, to be made in the absence of the referee, and to call upon such third person to make an unverified report, which, if relied upon, substantially determined the questions involved in the case. We think the only right conferred upon the referee by the stipulation was to examine the building in the presence of a person to be selected by him, to the end that he might better understand the evidence which had been given by the witnesses in relation to the building and the defects and changes therein. We cannot believe that it was the intent or purpose of the parties to confer upon the referee the absolute right to determine the questions in this case upon his own inspection of the building, or upon the unverified statement or report of a third person as to the facts in issue, and whether there had been a substantial compliance with the contract by 'the plaintiffs. If such had been their intent, there would have been no reason for the further examination of witnesses upon the questions involved, provided for in the stipulation. Nor would it seem to have been very necessary to retain the services of the referee after he had designated another person to determine the issues between the parties. If it was the intention of the parties to absolutely submit this case to the decision of this referee, or such person as he should select, irrespective of and uncontrolled by the evidence, then it became an arbitration, and the stipulation effected a discontinuance of the action. Larkin v. Robbins, 2 Wend. 505; Merritt v. Thompson, 27 N. Y. 225; Jordan v. Hyatt, 3 Barb. 275, 283; Claflin v. Meyer, 75 N. Y. 260, 266; Jacoby v. Johnston, 1 Hun, 242; Keep v. Keep, 17 Hun, 152. We do not suppose such to have been the purpose or intent of the parties in making this stipulation, nor that the action was discontinued by reason thereof. We think the insistence of the defendant that the course pursued by the referee was unwarranted and illegal must be sustained.
“In reference to the portion of the work which was designated by the counsel as subletting, you may state if, in your conversation with the defendant, it was talked that other persons than yourself would do the woodwork, when you were conversing about taking the contract. (Objected to on the ground that the witness should state the conversation, and any conversation prior to or at the time of entering into the contract merges in the writing itself, and is the best evidence. The terms of the contract cannot be impeached by parol. Objection overruled. Exception by defendant.) A. I did. There was competition in the letting of this contract. There were various other persons besides the plaintiffs that put in bids for the work. •Q. In conversing with this defendant in reference to the manner in which the work was to be done (that is, the persons who were to perform the labor), you may state what was said as to who was to do the woodwork,—whether yourself, or whether you were to make arrangements with others to do the woodwork. (Objected to as incompetent and improper; second, the writing itself, the contract, is the best evidence; and any conversation prior to or at the time of entering into the contract is merged in that writing, and the contract cannot be thus impeached or destroyed by parol evidence. Objection overruled. Exception by defendant.) A. I had a talk with Mrs. Yagel, and told her that Potter & Co. would do the woodwork if we took the job; that they were our carpenters. She said that was all right; from what she had seen of them work, she would as soon have them do it as any one else, and rather.”
The specifications which were made a part of the contract provided:
“No part of the work to be underlet, unless by the written consent of the owner; otherwise subcontractors will not be allowed on the work.”
While a breach of this provision of the contract would not, perhaps, deprive the plaintiffs of their right to recover payment under it, especially where the subcontractors were allowed to perform the work (Beinhaner v. Gleason, 15 N. Y. St. Rep. 227, affirmed 23 N. E. 1150), yet it is very manifest that the effect of the evidence admitted under the defendant’s objection was to contradict or vary the terms of the written contract between the parties. The written contract was that no part of the work was to be underlet unless by the written consent of the owners. The evidence was to the effect that the ■defendant had consented to such subletting previous to the making •of the written contract. It is a general rule of the law of evidence that all previous negotiations or conferences between the parties are merged in the written instrument, where one exists between them. While to this rule there are several qualifications, the ruling in this case does not fall within any of them, but was, we think, a clear infraction of the rule, as from an inspection of the written contract between the parties it appears to contain their engagements,-and to define the object and measure the extent of such engagements, and is presumed to contain the whole of their contract; and therefore parol evidence of the previous negotiations between the parties was inadmissible. Eighmie v. Taylor, 98 N. Y. 288; Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961; Case v. Bridge Co., 134 N. Y. 78, 31 N. E. 254. It is also a general and well-established rule that parol •evidence, when offered to contradict the terms or provisions of a written instrument, is not admissible. While to this rule there are