2 Hilt. 365 | New York Court of Common Pleas | 1859
Lead Opinion
In the law, as laid down by my brother IIiltoy, I fully concur. I differ only as to its application to the facts of this case. I agree that if Naylor entered into a special contract with the defendant Coe, to erect a building of a certain kind or description for §19,500, that he was fully paid before the plaintiffs filed their lien, and that nothing would be due from Coe to Naylor, to which the plaintiffs’ lien could attach; or that if Naylor agreed to erect a building in a specified manner, whether the sum he was to receive for it was agreed upon or not, and abandoned the work before it was completed, that he could recover nothing. Whatever doubts may have previously existed upon the point, it is now settled to be the law of this state, (Smith v. Brady, 17 N. Y. Rep. (3 Smith,) 173), that if a contract is entered into for the erection of a building, in which the nature of the structure and the materials of which it is to be composed are agreed upon and specified, that the builder must perform his contract in every essential particular, unless performance is waived by the other party. That the use or occupation of the building by the owner will not be deemed a waiver, or such an acceptance of the building as will entitle the builder to sue upon the contract, leaving the owner to deduct his damages from the contract price, but that a substantial performance, according to the terms and conditions agreed upon, is a condition precedent to the builder’s right to maintain an action upon the contract.. “Every one,” says Comstock, J., “has a right to build his-house, his cottage or his store, after such model and in such style as shall best accord with his notions of utility, or be most agreeable to his fancy. The specifications of the contract become the law between the parties until voluntarily changed. If the-owner prefers a plain and simple Doric colum, and has so provided in the agreement, the contractor has no right to put in its place the more costly and elegant Corinthian. If the owner, having regard to strength and durability, has contracted for walls of specified materials to be laid in a particular manner, or for a given
This rule, which denies to the contractor who abandons the work before he has completed it, or who in completing it has substantially departed from what was agreed upon, any remuneration for what he has done, is one in respect to which great diversity of opinion has existed. And the obligation, in such a case, of the party who has the possession and enjoyment of the labor and materials of another, to make at least some compensation for what he has received, after a full and liberal allowance has been made to him for any damage he may have sustained by the non-performance of the contract in its entirety, has been recognized and upheld by the judicial tribunals of Massachusetts and New Hampshire. Hayward v. Leonard, 7 Pick. 181; Smith v. First Congregational Meeting House in Lowell, 8 id. 178; Britton v. Turner, 6 N. H. 481. The more rigid rule, to which we have adhered in this state, has its foundation in the policy of securing the full and faithful performance of contracts where the contract clearly and expressly specifies what is to be done, for the reason that a more lax and less rigid rule would afford encouragement to parties to abandon, or execute, their contracts as their interest or caprice dictated; and though it may inflict upon ?the defaulting contractor a very heavy pecuniary punishment, •‘by-giving to the other party what the contractor has done, with- . out paying anything for it, still that consideration is unimportant, v-wéighed against its healthy and beneficial effect as a general rule.
* The xu'le, -however, can be applied only in cases where a spe- ■ ciál contract has been entered into, and the distinction in the present case is, that the contract under which Coe and Naylor :.aetedcannot be regarded .as a special one as respects the nature
On the 28th of May, 1857, Naylor agreed in writing, to erect a building as per plans and specifications signed by him and Ooe, to be finished, under the directions of Ooe, in a good and workmanlike manner and of the best materials, for $14,000, Coe to pay for the materials to the seller as the same were delivered at the building, to the extent of $9,000, and when the building was finished, Coe was to convey the store 14 Moore street to Naylor, ■ subject to a mortgage of $3,850, as payment in full for the remaining $5,000. Naylor further agreed to make any alterations suggested by Coe, provided the expense did not exceed $300. Though the contract refers to theplans and specifications signed byCoe and Naylor, contemporaneously with the making of the written agreement, no plans or specifications were signed. Specifications in writing, bearing the same date as the written agreement, and to which the name of the defendant’s brother as a witness was attached, were read in evidence; and which the brother Charles Coe testified were specifications drawn up by the defendant, and on which the contract was based. Naylor admitted that a specification was shown to him at the time of the making of the contract, that one was given to him at that time, which was lost, and that he might have seen the specifications exhibited in court before, but that he never signed any specifications or worked by any; that he was to draw a specification to work by, which was to be given to Coe, but that he never drew one. The defendant’s
About a month after that agreement was made, that is, on the 7th of July, an important change was made—the addition of another story—by which the building was made three stories in heighth. This Naylor agreed, in writing, to do in a workman
One important deviation in materials was from spruce to yellow pine timber. This the defendant’s witness, Lawrence, says was agreed to. It made a difference in the cost, that is, increased it between $1,200 and $1,500. The building was raised eight feet, which made a difference of $3,500, and made it necessary to give the roof a double pitch, when it was to have but a single pitch. The specifications are silent as to the kind of brick, the general provision being that “ all materials were to be of good merchantable qualities.” ¡Naylor intended to use soft brick on the inside of the walls, and had a right to. There was nothing in the specification to the contrary. Hard brick was used at an extra cost of $3,000. Timber for concrete was used at an extra cost of $500 or $600. These items are referred to, to show how material the deviations were. In addition to which, there were many things not embraced in the specification, and not necessarily a
Naylor testified, as I have said, that the alterations commenced with the foundation, and how material those alterations, changes and additions were, and how greatly they added to the cost of the structure, is apparent from the testimony. Naylor says that nothing was said about extra work. Coe paid all the bills up to the plaintiff’s bill. Every Saturday, Naylor came to the defendant’s store with á list of the laborers, and the defendant’s brother paid their wages. In this way the work went on, showing that the agreements signed by Naylor, which stipulated as to the mode of payment, were departed from in the beginning. “ I was satisfied,” says Naylor, “ to go on and build as long as Coe paid the bills.” And in this way they went on, Naylor following the directions of Coe and Lawrence, and Coe paying all the bills. Under such an arrangement Naylor was little better than a superintendent. He followed whatever directions were given to him, and the means to carry on the work were supplied by Coe, by paying the employees every Saturday night, and paying the bills as they came in. Such a state of things is inconsistent with the supposition that either party acted, or supposed they were acting, under a special contract for a certain thing at a fixed price. The defendant gave the most unequivocal evidence that he did not. According to the written instrument he was to pay $14,500, and only $11,750 of that before the building was finished, as the remaining $2,750 was to be paid when the roof was on and tinned. For the remaining part of the $19,500, he was to convey to Naylor a store, when the building was finished and cleared of all claims for labor, and yet he paid out in cash, while Naylor was in charge of the building, and before it was completed, $23,642, or nearly $10,000 more than Naylor could have demanded under such a contract, and a large excess over the price specified in the writings. This was and is, to my mind, very conclusive, to show that he did not regard himself as limited by that price, but that he clearly recognized his obligation to pay more. My conclusion was, and still is, that he showed, by his
I did not attach much importance to the receipt, except as an acknowledgment that $19,500 was received by Naylor previous to the 17th of August, 1857, because the defendant, by making subsequent payments—payments afterwards to the amount of $4,142—indicated very clearly that he did not regard it as a final settlement. ■ Nor did I hold the statement of Naylor, when examined upon proceedings supplementary to execution, that Coe had not agreed to give him more than $19,500, but that he had hopes that he would give him something more, as conclusive upon the plaintiff in the action. Naylor having testified, it was receivable in evidence, to be weighed in connection with what Naylor testified to on the trial; but the whole evidence in the case was to be taken together; and if the whole evidence taken together established'a different state of facts, the plaintiff would not be concluded by any admission made by Naylor.
It was in proof before me, that the mason and carpenter work of the building as finished was worth $29,529.06. I regret that the testimony of the two very competent witnesses, one a superintendent of buildings, and the other a practical mason, by whom this fact was established, has not been fully inserted in the case, that the mode in which they proceeded, and the basis upon which their estimate was made, might fully appear. But the fact stands upon the record, and the defendant did not attempt to controvert or question it. Lawrence, the defendant’s witness, testified that the additional work after Naylor left, amounted to $1,000, so that the materials and work then done was of the value of $28,529. The defendant’s brother testified that he paid out $25,000, and that defendant paid out, in addition, $1,000 or $2,987 more than
I have dwelt at much length upon this case, as it is a peculiar one, and because I feel that the case would be chargeable with injustice if we were to hold that the defendant is to enjoy the benefit of a building which cost nearly $6,000 more to erect than he has paid for it, upon the ground that the evidence shows a special contract to erect it for $19,500, or a building contracted for at $19,500, and augmented by extra work to the amount of $3,563.76, which is the defence set up by the answer. I am for adhering rigidly to the rule which holds parties to the full or substantial performance of their contracts, but the terms and conditions agreed upon must distinctly appear, or the foundation is wanting for the application of the rule. If the defendant desired the advantage or security to be derived from the express stipulations of a special contract, he should have had those stipulations distinctly and clearly expressed before Naylor began to build, so that if any alterations or additions were afterwards made, they would distinctly appear upon reference being had to the original contract. If they were extra work, it could be shown at once by looking at the original agreement, or if substituted for work therein provided for, what was substituted could be compared with what was omitted, and the extent to which the contract was varied, or the effect that the change might have upon the whole contract, would readily appear. It is this want, in the case, that renders it impossible to say what was extra work or what was change or alteration, or to adopt any other rule than the one I have laid down. The defendant has had the benefit of the $1,700 worth of work and materials, furnished by the plaintiffs, in the erection of the building. He has not paid for it. He is indebted at least to that extent, and the plaintiffs having been subrogated to the rights of Naylor, to the extent of their claim, by the filing of his lien, are, in my judgment, entitled to recover that amount from the defendant.
This appeal is presented for our consideration on
Dissenting Opinion
Naylor agreed, by his contract of May 28th, 1857, to erect a building for Coe at the corner of Bast and Cherry streets, in this city, according to certain plans and specifications referred to, and which he says were given him at the time, (but were, however, never signed), for the price of $14,000, payable as follows: $9,000 to be paid to sellers of the materials to be used, as the same should be delivered upon the ground, and a receipted bill handed over. The remaining $5,000 when the whole building was finished in every respect, and the same ascertained to be free from claims of any kind for labor or materials; and to be paid by conveying the store No. 14 Moore street to Naylor, subject to a mortgage for $3,850. By a subsequent agreement between the parties, bearing date July 7,1857, an additional story was to be put on the building, to be finished under the directions of Coe, for the sum of $5,500, “ (making the whole cost of the building, when completed, $19,500,) payable as follows: When the materials are placed on the ground $2,750, and when the roof is on and tinned, the rest, or $2,750.” By
Under these contracts the buildings were commenced, and during their progress—under the superintendence of Coe—they were materially altered from the contract or specifications, and although there never was anything said about extra work, or whether the alterations caused any additional expense in their making, the work was proceeded with by Naylor, until Coe had paid out on account of it, in cash, more than the whole contract price. At this time, which was about the 1st of September, 1857 (and during the first week of that month), the parties had a conversation, wherein Naylor stated that, if Coe would pay $22,500, it should be in full of all demands for the building and extra work. By the receipt which Naylor gave about this time, it appears that there had been paid him by Coe, prior to August 17, 1857, $19,500, in'full settlement for building the store in question, as per contract; and from Naylor’s testimony, there is no •doubt that he was paid, in all, $23,642, before he abandoned the building, which was about the 15th of September, 1857, when it was in an unfinished state; and after which the defendant Coe expended about $2,000 in its completion. Subsequent to this abandonment, and after Naylor had been paid not only tire contract price agreed-.on, but also, and in addition, a greater sum than he had agreed to accept in full satisfaction of the contract price and for all extra work performed by him, the plaintiff filed notice of the lien which he now seeks to enforce against the defendant Coe, as owner of the building, for the value of certain materials furnished and used in its construction.
I do not understand how such a claim can be maintained. We have repeatedly held, and such no doubt is the true interpreta- ■ tion of the mechanics’ lien law, that in order to sustain the lien :it must be made to appear affirmatively that at the time of filing ■the notice there was actually due or owing from the owner to the •'Contractor, upon the original contract, a greater sum than the
In other words, the lien creditor, by filing his notice of lien, succeeds only to the rights and claims which at the time is possessed by the original contractor, and to no other or greater; consequently, unless a state of facts is shown which, in a proper action, would entitle the original contractor to recover from the owner, the lien creditor cannot recover. Cunningham v. Jones, supra. It is probable, however, that if the owner and contractor should collude together, and agree upon a settlement in respect to the contract price, or the extra work connected with the contract, for the purpose of depriving parties, who -may have contributed their labor or materials to the erection of the building, of the lien which the statute intends to secure to them, the court would be disposed to disregard any settlement, which appeared to have been made for such a purpose; and in determining as to the intent of the parties, evidence showing that the value of the extra work performed was grossly disproportionate to the amount allowed for it on the settlement, might not only raise the presumption. that the settlement was fraudulent in respect to lien creditors, but would, unexplained, afford strong ground for declaring it to be so in fact. Lynch v. Cashman, 3 E. D. Smith, 660; Quimby v. Sloan, 2 id. 594.
As to the settlement, in this case, having been made as shown by the receipt, there can be no doubt. It stands in no way contradicted. But whether the conversation referred to actually took place, is not so certain, as Naylor positively denies it. However, the weight of the evidence is, in my opinion, so clearly against him on this point, that it may be assumed, in the absence
If it be said that the amount allowed for the extra work was disproportionate to its value, where, I ask, is the evidence upon this point ? I am aware that the witnesses Griffith and Frye testify to the value of the carpenters’ and masons’ work in the building being $29,529, but they do not state what part of this value is made up of extra work not contained in or called for by the contract, or what has been added to the value by Coe since Naylor abandoned the work. And even if it were conceded that there had been no such conversation and settlement as alleged, in respect to the extra work, there is no evidence which would justify us in presuming that there is anything owing by Coe to Naylor on account of it; and this being so, I am of opinion that the plaintiff has failed to establish any indebtedness from Coe to Naylor at the time of filing the notice of lien.
But, to go further, I think the evidence establishes, beyond a question, that Naylor abandoned the building and his contract before it was completed; and it cannot be denied that his right to compensation for the extra work is to be determined, in some degree, by the contract to which it was an addition. By that contract he was entitled to no compensation until the work specified in it was entirely performed, and there being no proof that the defendant Coe agreed to accept the building in the unfinished state in which Naylor left it, or that he waived further performance by Naylor of his contract, it is quite clear that Naylor could maintain no action upon the contract, and as the plaintiff,'as lien creditor, succeeds only to the rights of the orig inal contractor, it follows that he cannot. White v. Hewett, 1 E. D. Smith, 395; Neville v. Frost, 2 id. 62; Cunningham v. Jones, supra; Pullman v. Corning, 5 Selden, 93.
Judgment affirmed.