11 N.Y.S. 264 | N.Y. Sup. Ct. | 1890
This action is brought to recover a balance of $1,223.75 alleged to be due and unpaid upon a building contract entered into between the plaintiff and the defendant on the 2d day of June, 1887, by which the plaintiff was to perform the carpenter and joiner work upon a two-story frame dwelling-house, to be erected for the defendant in the city of Rochester, in a good, workman-like, substantial manner, and agreeably to, etc., drawings and specifications made by the architect, and to have the same completed on or before the 1st day of November of that year, for which he was to receive from the defendant the sum of $3,050, 80 per cent, of which was to be paid from time to time as the work progressed, and the balance when the whole contract had been completed, and the work accepted, in accordance with the architect’s certificates. By the terms of the written agreement, the drawings and specifications made by the architect, for the guidance of the contractor, were made a part thereof, so that any work shown on the drawings which was not mentioned in the specifications, or vice versa, was to be performed the same as though particularly specified, without any extra charge. The defendant voluntarily paid the plaintiff from time to time on the contract, as often as money was demanded, but without any certificate from the architect, until the final demand, which was refused. The plaintiff, on the 3d day of December, 1887, claiming that he had performed his contract, demanded a payment of the balance unpaid from the defendant, "and presented to him the following cer