27 A.D. 379 | N.Y. App. Div. | 1898
It is difficult to agree with the learned referee’s finding, that “ the plaintiff substantially performed all the conditions of said contract by him to be performed,” except in point of time. The referee finds that failure of performance as to the time of the completion of the contract was not plaintiff’s fault. We think this finding was permissible upon the evidence.
The referee, however, finds that “ there were slight omissions and deviations in the performance of the contract and specifications by the plaintiff from the strict letter of the contract, but thac such omissions and deviations were through inadvertence on the plaintiff’s part, and were not wilful or intentional. * * * Such omissions and deviations of the work, arising neither from the consent of the owner, nor necessity, consisted chiefly as follows : Failure to place bridging hr certain places provided, by the contract; failure to supply certain collar braces; failure to have girders of certain length and properly placed; failure to have trimmers and headers double instead of single, according to the contract; failure to put drawers and shelves in closets, pursuant to plans and specifications; failure to place wooden partition on a brick wall in basement.”. The referee finds that these “ defects and other small defects appearing in the building, proved to be due to any fault on the part of the plaintiff, could' be remedied for fifty dollars,” and he allows the defendant that deduction. Then the referee finds .that “ the defendant might have been. entitled to a greater allowance on account .'of the defective performance if he had proved and claimed what it would have cost to complete the contract strictly according to its terms.’ ”
The referee then finds that “ the defects aforesaid, for which the plaintiff is held to be responsible, were not pervasive and did not constitute a deviation from the general plan, and were not so essential that the objects of the parties in making the contract and its purpose have not, without difficulty, been accomplished.” ■
Our examination of the evidence fails to satisfy us that plaintiff has substantially performed. Host of the plaintiff’s omissions and-
The trimmers and headers are concealed when the building is completed. They also go to its strength and solidity. The con tractor has no excuse for making them single when the specifications required them to be double, and such a deviation cannot he called unintentional. (Glacius v. Black, 67 N. Y. 563.)
“.Failure to place wooden partition on a brick wall in basement.” This partition, instead • of being placed directly over the wall, and thus being supported by it, as the specifications called for, was placed so far to one side of it as to receive no support from. it.
“ Failure to supply certain collar braces.” These were to keep the rafters of the building from drawing apart. As these can now
The referee ■ intimates • that there are defects other than those which he specifies. Indeed, there seem to' be many. Some of these go to the strength and stability of the structure,-others'to inferior materials used in the work and others to matters of style and finish. It is not necessary*to specify them all. Most of them, are set" forth in the testimony of Mr. ¡Ross. The explanations and excuses offered by the plaintiff strike us as in most part an unsuccessful effort in that direction.
The referee finds “ that the defendant, by so often examining the work and then specifying to the plaintiff so many defects and requiring the same to be remedied, and then going into possession of the house and staying there without complaint, and making no claim for substantial defects until the bill was presented, waived what might possibly otherwise be (insisted upon as) substantial defects.” If this means that the plaintiff could safely depart from his contract so far as the defendant should not detect and check him in so doing, it has no warrant in the contract or in the law. Such a rule would invite bad faith. " ' .
The fact that the defendant took possession of his own house without protest against the defects he had not previously discovered was not a waiver of them. The most that can be said of it is that it was evidence touching a waiver, but not of itself establishing it. The rules applicable.to chattels from the nature of the case cannot apply.. This was a brick house; the plaintiff’s part in its erection was limited to the woodwork. There was no reason why the defendant should not occupy his house if he chose to do so. (Smith v. Brady, 17 N. Y. 173, 187; Mack v. Snell, 140 id. 193.)
Where the defects are substantial the plyjntiff^cannot be required to accept damages or deduction from the contract'price. His agreement was to pay upon performance, and not otherwise. It is true the old rule of strict performance is somewhat relaxed (Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 88 id. 648 ; Crouch v. Gutmann, 134 id. 45), but substantial performance is still required. ■ Substantial performance, as defined by these and other cases, permits only such omissions or deviations from the contract as are
All concurred, except Merwin, J., dissenting.
Judgment reversed, referee discharged, and a new' trial granted, costs to abide the event.