Fallon v. Lawler

Decision Date13 April 1886
Citation6 N.E. 392,102 N.Y. 228
PartiesFALLON v. LAWLER.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from order of general term, reversing judgment of special term in favor of plaintiff.

Calvin Frost, for appellant, John Fallon.

Frederic A. Ward, for respondent, Rosanna Lawler.

MILLER, J.

As the judgment in this case was reversed by the general term upon the facts as well as the law, we are called upon to determine, not only whether there was any error of law, but whether the decision of the trial court was clearly contrary to the evidence. The testimony on the trial shows that the parties entered into an oral contract by which the plaintiff agreed to remove a building to the rear of a certain lot, put a cellar under it, and a roof on it, and build a three-story brick building on the front of the lot. The terms of the contract were expressed in plans and specifications which were not signed by either party. After the building was removed and the contract partially performed as to the brick building, the work was stopped by defendant's order. We think it must be assumed that when the defendant refused to permit the plaintiff to proceed with the work on the second of October, 1876, the plaintiff had failed in several particulars to perform the contract made by him with the defendant according to the plans and specifications. As matters then stood by reason of the plaintiff's failure to fulfill the contract, he could not have recovered of the defendant the value of the work which had already been done, and it was a good defense to this action up to that time that he had failed to perform the contract according to the agreement as required by the plans and specifications. Immediately after this the defendant selected an architect to examine the work, who found the contract unperformed in several respects, and made a memorandum of the defects, and a list of the work which was to be performed by the plaintiff to remedy the defects, which was accepted and agreed to by the parties. The plaintiff then undertook to do this work, and was again stopped by the defendant.

The question then arises whether the new arrangement which was entered into, and which the plaintiff desired to perform, was a waiver by the defendant of performance by the plaintiff of the original contract. This agreement conceded the defects therein mentioned, and, had it been carried out, would have operated, no doubt, as a waiver of any claim arising by reason of such defects. It would reinstate the original contract, with the modifications which had been agreed upon. The evidence shows that the work had barely been commenced under the new agreement when the plaintiff and his men were ordered therefrom by the defendant, who insisted that the contract price should be reduced $500, and a disputed claim of the defendant paid before the work should proceed. This demand was refused by the plaintiff, and the work stopped. The plaintiff afterwards again and again asked to be permitted to finish the work as the architect had said it should be done, and he offered to do so, but the defendant refused to allow him to go on. It was therefore the fault of the defendant that the plaintiff did not proceed in accordance with the new arrangement and complete the work, and if the agreement made was obligatory upon the parties, no reason exists why the plaintiff should not recover for the value of the work which he actually performed.

The defendant claims that the new agreement was without consideration, and the court at general term holds, in its opinion, that an agreement that certain omissions should be supplied, and that upon this being done it should be deemed a full performance, after default as an executory contract, would rest upon no valid consideration. There was evidence upon the trial showing that the plaintiff had set men at work to perform what was required under the agreement to remedy the defects, and several of them were at work for that purpose when they were stopped by the defendant. Such being the fact, it is fairly to be implied that the plaintiff may have given up other work to fulfill the engagement he had entered into with the...

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6 cases
  • Tenzer, Greenblatt, Fallon & Kaplan v. Abbruzzese
    • United States
    • New York Supreme Court
    • 15 Julio 1968
    ...N.Y. 65, 68, 92 N.E.2d 890, 892; Gillies v. Manhattan Beach Improvement Co., 147 N.Y. 420, 423--424, 42 N.E. 196, 197; Fallon v. Lawler, 102 N.Y. 228, 233, 6 N.E. 392, 394; Nirenstein v. George A. Horvath, Inc., 286 App.Div. 409, 412, 143 N.Y.S.2d 833, 836.) In any event, the pleadings here......
  • New England Oil Corporation v. Island Oil Marketing Corporation
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 10 Abril 1923
    ... ... 348, 38 L.Ed. 177; Du Pont de Nemours Powder Co. v ... Schlottman, 218 F. 353, 134 C.C.A. 161; Black v ... Woodrow, 39 Md. 194, 215; Fallon v. Lawler, 102 ... N.Y. 228, 6 N.E. 392 ... We are ... of the opinion that the jury were properly instructed that ... the defendant had ... ...
  • Sobel v. City of New York
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Noviembre 1959
    ...N.Y. 65, 68, 92 N.E.2d 890, 891; Farmers' Loan & Trust Co. v. Housatonic R. Co., 152 N.Y. 251, 254, 46 N.E. 504, 505; Fallon v. Lawler, 102 N.Y. 228, 233, 6 N.E. 392, 394; Gillies v. Manhattan Beach Improvement Co., 147 N.Y. 420, 423-424, 42 N.E. 196. Under these circumstances, the court's ......
  • Roberge v. Winne
    • United States
    • New York Court of Appeals Court of Appeals
    • 8 Febrero 1895
    ...be held to be correct as matter of fact, it is quite likely that he would now be entitled to the benefit of the point. Fallon v. Lawler, 102 N. Y. 228, 6 N. E. 392;Knapp v. Simon, 96 N. Y. 284;Moffatt v. Fulton, 132 N. Y. 513, 30 N. E. 992;Wells v. Association, 120 N. Y. 630, 24 N. E. 276;F......
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