New York Metal Ceiling Co. v. Leonard

48 Misc. 500 | N.Y. App. Term. | 1905

MacLean, J.

By an agreement in writing the plaintiff undertook to cover with metal the ceiling and sidewalls of a new hall, attached to the saloon of the defendant on Coney Island avenue, for $700, the “ terms of payment to be as follows: when the metal work is three-quarters done $250 in cash, the balance to be given in two notes, one for thirty days and one for sixty days.” Passing by the ambiguity in these terms of payment, the main controversy here is over a note of $125 given in renewal of a preceding one, also a renewal, the original whereof, the defendant claims, was without consideration, because of alleged noncompletion by the plaintiff of the work undertaken as above. Upon the question of completion or substantial completion of the work, the contradictions were sharp and the conflict direct; with preponderance, apparently, in circumstantiality and in number of witnesses, in favor of the plaintiff; particularly as impeachment, for want of consideration, of the note, valid upon its face, was a defense to be established affirmatively, by the party alleging it, and because the defendant, formerly a carpenter, had not spaced the hanging ceiling as required and that the side studding to which the metal was nailed was wide apart. Still the judgment would not be disturbed here for that appearance. Otherwise is it, however,' as to extra work and material in ceiling a partition, for the reasonable value of which as $50 evidence was given, but for which the jury allowed nothing, seemingly accepting the defendant’s contention that failure to prove a specific order therefor from the defendant, or more than a verbal direction from the architect, precluded recovery therefor. It being in evidence, however, without gainsaying, that the defendant, professedly conversant with carpentering and building, was at his place every day and so must have seen the extra work and material applied, and so permitted it, he is impliedly liable to pay for it under the rule that, if a person allows another to work for him under such circumstances that no reasonable man would suppose that the latter means to do work for nothing, he will be liable to pay for it. The doing of the work is the offer; acquiescence in its being done is the acceptance. The judgment should be reversed.

Scott and G-ildersleeve, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.