24 N.Y.S. 170 | N.Y. Sup. Ct. | 1893
This is the second time this action has come before this general term for review. It was brought on a building contract between plaintiffs, as contractors, and defendant, as owner, to recover a balance claimed by plaintiffs to be due for making •alterations and additions to defendant’s building in Maiden Lane, "in this city, under such written contract. By its terms the contract provided for the payment to plaintiffs of the sum of $14,199 for the entire work, in the fallowing manner: $4,000 when the third tier of beams was placed in position, $4,000 when the roof was on, •and the balance, $6,199, 10 days after the entire work was completed. Although no time was specified in the contract, it was insisted by defendant that May 1,1890, was agreed upon as the date of completion; but the referee has found against this contention, holding that no time was agreed upon between the parties within which the said work should be finished. Upon the execution of the contract, which wras made in March, 1890, the plaintiffs com.menced work thereunder, and continued until August 20th, when
“Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects, caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects. The defects must not run through the whole, nor be so essential as that the object of the parties to have a specified amoxmt of work done in a particular xvay is not accomplished.” »
In addition to the work which then remained to be done, there was imperfect work, which had to be done over, and Which, as found by the referee, cost defendant $175. The existence of this condition of affairs, showing that a portion of plaintiffs’ work had been imperfectly done, requiring the expenditure of time and money by the defendant, raises a serious question as to plaintiffs’ right to maintain the action at all. We do not, however, decide that this is an insuperable bar to a recovery, but will proceed to dispose
“Sixth. That for some time prior to the 15th- day of August, 1890, plaintiffs refused and neglected to supply sufficient workmen and material for the proper prosecution of the said work; that on the said day the defendant served on the plaintiffs a notice in writing, in accordance with the said fourth section of said contract; that for three days thereafter, and down to said August 20, 1890, plaintiffs still failed, neglected, and refused to supply a sufficiency •of material and workmen, and thereupon the defendant excluded said plain*174 tiffs, their agents and servants, from said premises, and proceeded to complete-said work himself. Seventh. That a large portion of the work as called for-by said contract, constituting a material and substantial part of said work, remained unfinished on the said 20th day of August, 1890, 'when the plaintiffs-were so forbidden to finish said work.”-
Upon these facts the defendant, under the terms of the fourth* clause of the contract, was entitled to finish the work and deduct the expense from the amount due under the contract. That more-was expended to complete the building in the manner in which it was completed than remained unpaid under the contract is-abundantly shown by the evidence. It is insisted, however, by the plaintiffs that the large expenditures thus made were the result off departing from the plans and specifications, and of introducing additional and extra work, which, if the defendant were entitled to-deduct from the contract price, would result in injustice to them.. It should be remembered, however, that the contract itself provided for changes in the plans and specifications in language as-follows:
“Third. Should the owner at any time during the progress of the said building request any alterations, deviation, addition, or omission from the said. contract, he shall be at liberty to do so, and the same shall in no way affect. or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”
This provision, as well as the specifications themselves, show that it was in the contemplation of the parties, in view of the* nature of the work, that variations from the plans and specifications would be necessary; and as it was not shown that any changes-in such plans and specifications were made in bad faith, or with a view to injuriously affecting- the plaintiffs, we do not see that they have any reason to complain. It certainly was not the duty of the defendant, after the plaintiffs had unreasonably delayedi their work and failed to provide necessary material and sufficient workmen, merely for the purpose of having correct accounts at the-completion of the work, to adhere strictly to the plans and specifications, to his own prejudice. It would, of course, have saved much question, and presented the matter in a clearer way, if the-defendant had kept a more exact statement of the payments made-for work done under the plans and specifications separately from the amounts expended for such deviations and alterations from the-plans and specifications as were required by the nature of the-work.
It was suggested in the former opinion of this general term* that the burden was upon the plaintiffs of showing what it would cost defendant to complete the contract according to the plans- and specifications, and that it was the contract price, less such cosl, that they could alone recover. Exception is taken to this statement of the law; but if we assume the plaintiffs’ view to-be correct, that the burden was upon the defendant, it was-not, as far as the defendant had it in his power to meet it by his-presenting a detailed statement of the amounts paid all the different workmen, and by showing what such payments were made for..
In addition to the merits, the appellants rely upon certain rulings of the referee in the admission and exclusion of evidence. The first relates to a question asked of the carpenter who finished the work for defendant, whether he was able to state how much of the work that he did was embraced or comprised in the plans and specifications. This was objected to, and the objection sustained, upon the ground that the specifications would speak for themselves. This witness had testified fully as to what work he did, and the specifications were present for examination. The question called for the witness’ conclusion as to what portion of the work done by him he thought was embraced within the specifications, with respect to which the referee was competent and able to draw conclusions for himself.
Another error assigned was the permitting the defendant to give testimony as to whether or not there was a bulletin or directory for tenants on the inside of the building. We agree with the appellants that such evidence was entirely incompetent, but, as shown by the conclusions reached by the referee, entirely harmless. It was no doubt introduced for the purpose of sustaining the defendant’s view that there was an agreement that the work was to be completed by May 1st; but, as the referee found with the plaintiffs upon this point, and against the defendant, it is evident that no harm was done by admitting this evidence.
The same may be said of the next exception, which relates to a ruling by the referee, admitting the entire conversation at the time of the execution of the contract for the purpose of varying its terms. The ruling was erroneous, but as the conversation introduced was for the purpose of supporting the defendant’s theory that the work was to be completed by May 1st, and as the referee has found against the defendant upon that point, the ruling did no harm.
The next exception is as to the testimony allowed as to the cause of refusal of tenants to take offices in the building. This, of course, was incompetent, but as it was introduced for the purpose of showing loss of rentals, which was not allowed by the referee, who upon this subject found with the plaintiffs, it presents no reason for disturbing the judgment.
The judgment should therefore be affirmed, with costs.
VAN BRUNT, P. J., concurs in result. FOLLETT, J., concurs.