Wyckoff v. Taylor

43 N.Y.S. 31 | N.Y. App. Div. | 1897

Barrett, J.:

There can be no doubt from the complaint — and the position was ' emphasized by an admission of plaintiff’s counsel during the examination of the witness Schildwachter—-that the action was to recover upon a quantum meruit for the reasonable value of the work and material furnished by Kierst, not for damages for breach of contract. But the proof did not conform to the pleading and admission. No detailed evidence was. given of the- work and material, and its value. Kierst simply testified, generally, to fulfillment of the contract on his part. The plaintiff thus made out a prima facie case for a recovery of the full contract price, less the sums paid thereon. He made out no other cause of action, nor did he attempt to do so. The defendant had a perfect right to hold him to the position thus deliberately taken, and the complaint should have been dismissed, unless facts were shown dispensing with the necessity for the architect’s certificate. It was not necessary to base the motion to dismiss upon the specific ground that the evidence was insufficient for a recovery upon a quantum meruit. It appeared, beyond dispute, that the proof had been confined to what was requisite for a recovery upon a different ground, namely, substantial fulfillment of the contract. The' most that could be required of the defendant’s counsel was that he should point out the change in the theory of the action, and state that his motion was made in view of it. This lie clearly did. No architect’s certificate was shown, nor was evidence given that such a certificate was requested and unreasonably refused. This was the condition of the case when the plaintiff rested •—• as he did —upon Kierst’s testimony that the contract had been substantially fulfilled. But this prima facie' case of fhlfillment fell as the trial proceeded; and, when the testimony was all in, it appeared beyond a doubt that the contract had never been fulfilled. Indeed, the trial, after the plaintiff rested, proceeded mainly upon a dispute as to the cost- of work which was confessedly unfinished at the time Kierst was stopped; and it was indisputably proved that items of work of prime importance, costing hundreds of dollars to supply, were unfinished when he left. Under this state of the proof, the motion to dismiss was renewed and again denied. This is not, .therefore, the common case of a contractor proving full performance to show that the architect’s refusal was unreasonable.

The plaintiff’s whole claim is based upon an erroneous view of his positiou at the time he was stopped. Kierst agreed to complete the work “ on or about the 20th day of March, 1885.” He testifies that lie was expelled the latter part of April or beginning of May ; the defendant that it was on April fourteenth. In either case it was over three weeks after the work should have been turned over complete to the defendant. No excuse for this delay, having any substance, is given. The defendant was not to blame in any way, and the plaintiff, with great philosophy, treats it as one of the necessary evils which an owner is compelled to put up with when he enters into a building contract.

. It is impossible, however, for the law to overlook this breach with the same easy good nature. If the provision of the contract as to time is to be overlooked, it must be because the case falls within that narrow class where courts have always, held time not to be of the essence of the contract. .On this head Parsons .says-: “The court will always inquire into the time when a thing is to he done, as they will into any other part of the contract; * * * if it seems that the whole value, or a material part of the value, of the transaction * * * depends upon its being done at a certain time, and no other, or that the substitution of any other will subject him (one of the contracting parties) in any way to loss or' material inconvenience, then time is certainly of the essence of the contract so far as he is concerned, and the court will so regard it.” (3 Pars. on Cont. 384-386.)

Most certainly this case is of the class thus referred to. The defendant testified, without contradiction, that she saw the deláy .would result in her not being able to 'rent the building when the season'came. But it required no such ■ testimony to show that time was, here, of the éssence of the contract. It was manifest from its very nature that delay meant loss of rents.

■ Nor did the defendant, waive her right thus .to terminate the contract. It appears that she did not expel Iiierst at once when he ran •over his time. But this cannot be construed.into a consent that he might go on, in any event, until he snould get the work-done. An owner may be willing to wait fór a brief period without being willing to wait indefinitely. The continued failure on the contractor’s part to complete the work is a continuous breach of the contract,, of .■which the owner may avail himself at any Time. To hold otherwise would put the owner completely at the mercy of a dilatory ■contractor. .

We do not mean to intimate that the owner may induce the contractor to continue work under the belief that the contract is still in existence, and then refuse to pay him for the work so done. We are not here concerned with the work already done. The question presented by the plaintiff’s claim, now under consideration, is whether Kierst had the right to remain and finish his work'; and we must hold that he had not. Having failed to complete when he agreed to, the defendant had the right to make him give way to speedier contractors. Thus the plaintiff failed to show a right to recover the contract price of $5,200, and the whole basis upon which the referee made his award is erroneous. As the plaintiff insisted upon recovering the contract price, the defendant was justified in demanding proof that his assignor had earned that sum in accordance with the terms of the contract. He made such a demand at the proper time and in the proper manner.

If the plaintiff' seeks to recover upon a quantum meruit, he must prove' what it was he did which was not paid for under the contract, and its value. He cannot throw upon the defendant the burden of showing what he omitted. Hor can he escape, this result by contending that the full contract price shall represent the reasonable value of the contract work. It is no evidence whatever of such .value. (Gumb v. Twenty-third St. Ry. Co., 114 N. Y. 411; Kennedy v. McKone, No. 1, 10 App. Div. 88; 41 N. Y. Supp. 782.) He cannot evade a heavy burden of proof by calling his action one thing when it is, in fact, another. Though he sued upon a quantum meruit, his proof was for a recovery under the contract, and, by the course of the trial, this cause of action became practically substituted for the other. Hor was its nature changed' by the concession that the defendant might cut down the amount, so far as she.could, by proof of the value of the uncompleted work. The plaintiff could not thrust this concession upon the defendant, and take in exchange — against her' will — the right to call the contract price of $5,200 the prima facie value of the work' done.

It is true that considerable laxity has arisen in regulating the rights of parties to building contracts. Courts have been. quick, perhaps at times overquicb, to work out from the facts presented a waiver, on the -part of the owner, of rights he would otherwise have had against 'the contractor, by reason of the non-fulfillment of the agreement,, either as to the time of performance or the details of the work. But these cases have not assumed to nullify or disregard precise provisions 'deliberately put into the contract by the parties. ' They were generally based upon the finding of acquiescence as a fact. Ho such fact can here be found. ■ Whatever the respective rights of the defendant and Kierst as to the work which had already been done, it is certain that the former was at liberty to discharge the latter at the time she did To hold otherwise would be to declare the terms of the contract of no importance in a most, material point, and to render it unsafe for any responsible man to enter into a contract for the erection of a building upon, his land. If he did so, it would be with the assurance that, in case he for a. single instant tolerated breaches by the contractor, he would. be deemed to have forever waived ■ them; and that, if he refused to-tolerate them beyond a certain point and determined — when he could bear them no longer — to stand on what "lie might not unnaturally' consider to be his legal rights, he would be liable in damages as one who had committed an tin justifiable breach of his agreement.

As the judgment must, for thé reasons stated, be reversed, it becomes unnecessary to consider the second cause of action, upon the Morgan claim, as to which the evidence and findings, may be entirely different upon a new trial.

The judgment should be reversed, the order of reference vacated,, and a new trial ordered, with costs to the defendant to abide the-event.

Rumsey, Williams, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and order of reference vacated and new trial ordered, with costs to defendant to abide event.