35 Barb. 602 | N.Y. Sup. Ct. | 1861
The case is not prepared in a way to show the findings of the referee upon questions of fact, or his conclusions of law, and the only statement of either is in his general report and direction for judgment, which was evidently not made with an intent to show the disposition made by him of the several questions of fact and of law involved in the final result. Its object was to set forth the main facts found by the referee, and which entitled the plaintiff to a judgment, without considering or disposing of the several defenses and objections interposed by the defendants. But if the case in connection with the report sustains the judgment, the defect may be overlooked rather than subject the parties to the delay and expense of sending the case back for a re-settlement.
The decisions of the referee upon questions of fact will be considered conclusive to the same extent as a verdict of a jury, and will not be disturbed, except when they are very clearly against evidence; and when there is evidence sufficient to sustain the report, but the fact established by such evidence is not expressly found by the referee in his report, and the party making the case has not prepared any finding upon such fact, justice requires that it should be presumed, in support of the judgment, that the referee in truth found the fact in accordance with the evidence. This is only carrying into effect the ordinary presumption in favor of judgments, and the rule requiring a party seeking to reverse a judgment to show error therein. If the referee did not find the fact necessary to sustain the judgment, or found against such fact,
The first objection taken is that the report of the referee, “that the plaintiffs did erect and finish said stores or buildings substantially as in and by the said contract they ‘bound themselves to do,” except as to time, is not sufficient. But this is áll the law requires, and if the referee has found in the very language of the rule, it ought to be sufficient. If there has been no willful departure from the terms of the contract, or omission in essential parts, and the laborer has honestly and faithfully performed the contract in all its material and substantial features, he will not be held to have forfeited his right to remuneration, by reason of mere technical, inadvertent and unimportant omissions or defects. The law imposes no such liability upon, and exacts no such penalties of, the mechanic. It will see that justice is done to the employer, but at the same time it will do no injustice to the laborer. This rule is recognized in every case in which the rights and duties of parties to building contracts are considered, and a substantial compliance with the contract is all that is required to entitle the builder to his reward. (Smith v. Gugerty, 4 Barb. 614. Smith v. Brady, 17 N. Y. Rep. 173. Pullman v. Corning, 14 Barb. 174; S. C., 5 Seld. 93.) If indeed there were any defects or omissions- on the part of the plaintiffs, the defendants should have had the referee pass upon them, and then the court could have judged whether they were essential to the substantial performance of the contract.
2d. It is insisted that this finding is not supported by the evidence.
The work was to be done to the satisfaction of, and under the direction of, Charles W. Clinton, (the architect,) “to be testified by a writing or certificate under his hand.” And the proof is, that Clinton did superintend the work, and furnish working plans and drawings varying slightly from the drawings and specifications making a part of the contract, and
The grade of the street was altered after the making of the contract and the commencement of the work under it, and there is evidence that the city surveyor gave the plaintiff at first the wrong grade, which caused the mistake in the elevation. This might not alone excuse the plaintiffs, but there is also evidence that the plaintiffs, during the progress of' the work, pointed out the mistake and declared the cause of it to the architect and to the defendants’ agent, and no complaint or objection was made by either. It was their duty to object then, when the mistake might have been rectified, and
(1.) The dispute here is not as to the value of the extra work, but as to the liability of the defendants to pay for any extra work, or rather, whether the plaintiffs performed any extra work for which the defendants are liable, and there is no provision for submitting such question to arbitration.
(2.) Both parties appear to have waived this provision, as neither have insisted upon or offered to make the submission.
(3.) The defendants did not ask the referee to reject the claim for extra work, upon this ground, and therefore cannot take the position upon this appeal.
(4.) The provision is no bar to an action. It may give the defendants an action for damages if the plaintiffs refuse to abide by it, but is no defense to an action. (Haggart v. Morgan, 1 Seld. 422.)
The only other points made by the defendants which require consideration, relate to the allowance to the plaintiffs for extra digging in the cellar, made necessary by the alteration in the grade of the street, under the direction of the common council. There is some conflict of evidence upon this point, but the referee has found that it was “ done by the
The judgment should be affirmed, with costs.
Clerke, Allen, and Barnard, Justices.]