80 A.D. 527 | N.Y. App. Div. | 1903
This action was brought to foreclose a mechanic’s lien which had been filed against certain premises at the northeast corner of Beach and West streets for a balance due upon a contract entered into between the plaintiff and the defendant, who was the owner of said premises, whereby the plaintiff contracted with the defendant to well and sufficiently execute, deliver, erect and finish in a true, perfect and thoroughly workmanlike manner to the satisfaction and under the direction and supervision of the defendant all the carpentry work (with certain exceptions therein mentioned) required in the erection and completion of the building at the northeast corner of Beach and West streets agreeably to the drawings and specifications furnished or to be furnished by the defendant, forming part of the contract; and to furnish and provide such good, proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient for completing and finishing the work theretofore named of the said building as shown in the drawings and mentioned in the specifications for the sum of $11,154. The defendant agreed by said contract to pay said sum in consideration of the covenants and agreements therein named being si/rictl/y executed, kept and performed by the plaintiff as specified. The contract also contained a provision for the terms upon which extra or additional work should be done. It also provided that should the contractor at any time during the progress of the work become bankrupt, or refuse or neglect to supply a sufficiency of material or workmen, or cause any unreasonable neglect or suspension of work, or fail or refuse to follow the drawings or specifications, or comply with any of the articles of agreement, the defendant should have the right to enter upon and take possession of the premises, and at once terminate the contract; whereupon all claims of the contractor should cease. It further provided that the defendant might provide materials and workmen sufficient to complete the said works, after giving forty-eight hours’ notice in writing, and the expense of the notice and the completion of the various works should be deducted from the amount of the contract, or any part of it, due or to become due. It
During the progress of the work the defendant paid $6,000 on account, and the plaintiff, claiming to have performed his part of the contract, filed a lien for the balance and commenced this action for the purpose of foreclosing the same.
The learned court below found that the plaintiff had substantially performed his contract, but that the work as performed by him was not worth as much by $2,500 as it would have been if it had been completed in the manner provided for by the contract, and deducted that amount from the amount of the lien, and gave judgment for the balance. In other words, the plaintiff had failed to finish one-seventh of his contract, and yet was held to have substantially performed it. It seems to us that the statement of this proposition shows that the learned court below must have fallen into some error in supposing that there could possibly be a substantial performance when one-seventh of the work was undone. When I say undone, I mean that the work as done was worth one-seventh less than it would have been had it been done in compliance with the terms of the contract. How it seems to be a proposition too plain for argument that when an owner makes a contract for the doing of a work upon a building of a particular character, and the work is done in an entirely different manner, as is conceded by the learned trial court in this case, he cannot be compelled to pay for the work, making deductions for the poor quality of work and material. It would seem that the learned court below was influenced in arriving at this conclusion by evidence that the defendant
If we might refer to the opinion of the learned court it will be seen at once that the court was of the opinion that this contractor could not perform the work in the manner called for by the contract. He says: “ The evidence shows that the work done under the contract and extras charged for in the complaint were performed by the plaintiff after the fashion in which he performed his work.” It was not a question of the fashion in which the plaintiff performed his work; the question was as to the fashion which the contract called for, and which the defendant had a right to exact.
He had been particular in his contract to provide for the doing of the work in a perfect and thoroughly workmanlike manner, to the satisfaction and under the supervision of the defendant, and his covenant to pay was in consideration of the covenants and agreements in the contract being strictly executed, kept and performed. It cannot be that a man, when he makes a contract which calls for strict performance of work to be done upon his premises, and work of an entirely different character is put thereon, is compelled to pay the contract price, after deducting the difference between what the good work and materials would have cost and what the bad wojk and bad materials might have been worth, had such been called for by the contract.
It is urged upon the part of the respondent that the defendant, never availed himself of the provisions of the contract to take possession of the work and complete the same. It is sufficient in answer to that proposition to say that that was a privilege which he-had, and not a duty that he owed.
It is further claimed that the defendant never exercised his right-of rejection of any materials or workmanship deemed by him to be-improperly performed and not in accordance with the drawings and specifications. On the contrary, the evidence shows that he has-distinctly objected and pointed out to the contractor the defects.
It was clearly error to allow evidence to be introduced as to what the tenant did, or as to the fact that the defendant had rented the premises and that the tenant had gone into possession. It may very well be that the defendant, rather than stand a suit by the tenant, permitted him to go into possession of the premises, although the work did not comply with the contract, and the tenant may have been in such a position in regard to his necessities as to a place of business that he accepted what he could get, rather than be without the accommodation which it was necessary for him to have. But it is well established that the fact of taking possession of work done upon one’s own premises is no evidence of acceptance. A contractor cannot, by doing inferior work, exclude an owner from taking possession of his own.
We think that upon the findings of the court it appears that there never was a substantial compliance with this contract, and the evidence shows, and the opinion of the court concedes, that there never was an attempt upon the part of the plaintiff to comply with its terms.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.
Ingraham, McLaughlin, Hatch and Laughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.