Clief v. Vechten

Decision Date09 February 1892
PartiesVAN CLIEF et al. v. VAN VECHTEN et al.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, general term, second department.

Action by John H. Van Clief and others against Hannah R. Van Vechten and others for the foreclosure of a mechanic's lien. Plaintiffs obtained judgment, which was affirmed by the general term. Defendant Van Vechten appeals. Modified.

The other facts fully appear in the following statement by VANN, J.:

This action was brought in the county court of Richmond county for the foreclosure of a mechanic's lien. On the 31st of March, 1886, the defendant Smalle agreed to furnish the materials and erect a building for the defendant Van Vechten for the sum of $4,298, less $275 for a fire-place, heater, and furnace, making the net price $4,023, payable, $1,000 when the building was sheathed, $1,000 when the exterior was finished, $800 when the plastering was finished, and the balance when the entire work was completed; such payments to be made upon the certificate of the architect in charge. The work was to be completed by the 15th of October, 1886, and if incomplete at that time said contractor was to forfeit $10 a day for every day that the building continued unfinished. The contract also provided that if the contractor, at any time during the progress of the work should refuse or neglect to supply a sufficiency of materials or workmen, the owner should have power, after three days' notice in writing, to provide materials and workmen, and finish the work, and that the expense should be deducted from the contract price. Smalle entered upon the performance of his contract, and was paid by Mrs. Van Vechten $1,000, June 1, 1886, and $1,000, July 27, 1886. The plaintiffs furnished materials, worth $1,264.35 to Smalle, that were used in the building, and other materials worth $405.75 to the defendants Newman, who were subcontractors with Smalle, that were also used in the building. On the 17th of September, 1886, and within 90 days after such materials had been so furnished and used, the plaintiffs filed a notice of lien, in the usual form, under the general mechanics' lien act of 1885. September 22, 1886, Smalle abandoned his contract, leaving the building incomplete, and refused further performance, although notified by Mrs. Van Vechten to go on with the work, and that in default thereof she ‘would cancel and forfeit said contract, and make other arrangements to complete the building.’ After such refusal Mrs. Van Vechten furnished materials and employed workmen to finish the building at an expense of $1,905.20. The work was thus completed February 15, 1887, and the same was done under the direction of the architect mentioned in the original contract, and according to the plans and specifications named therein. Smalle demanded no payment of the owner after July 27, 1886, and served no answer in this action. The referee found that, when the lien was filed, ‘Smalle had earned, and there was remaining unpaid to him, on account of said contract, the sum of $900, and at that time the plastering upon said building was substantially finished, and there was due and unpaid Smalle, under said contract, the sum of $800 over and above all payments theretofore made to him thereon by defendant Van Vechten.’ He refused, upon due request, to allow anything to Mrs. Van Vechten on account of the sum paid by her to complete the building after its abandonment by Smalle, although she had demanded in her answer to be allowed that sum as a set-off. Judgment of foreclosure was rendered for the sum of $800, with interest thereon from September 17, 1886. Upon the trial the complaint was amended so as to conform to the proof and to demand only $800, besides interest, and thus bring the claim within the conceded jurisdiction of the county, court. The general term held that, although nothing was due under the contract, as between contractor and owner, still, as the property of the lienors had been used in the building, and the owner had received value therefor, over and above her payments, to the extent of $800 and interest, the judgment should be affirmed.

Ezekiel Fixman, for appellant.

David Thornton, for respondents.

VANN, J., ( after stating the facts.)

The statute applicable to the subject of this action is chapter 342 of the Laws of 1885, as it stood before it was amended by chapter 316 of the Laws of 1888. As we construe that statute and read the decisions made thereunder, as well as those made under similar statutes, we think that the following rules determine the extent to which a mechanic's lien filed by a subcontractor or a material-man attaches to the locus in quo: (1) If anything is due to the contractor, pursuant to the terms of the contract, when the lien is filed, it attaches to that extent. (2) If nothing is due to the contractor, according to the contract, when the lien is filed, but a certain amount subsequently becomes due thereunder, the lien attaches to the extent of that sum. (3) If nothing is due to the contractor, pursuant to the contract, when the lien is filed, and he abandons the undertaking without just cause, but the owner completes the building according to the contract, and under a provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed. Larkin v. McMullin, 120 N. Y. 206, 24 N. E. Rep. 447; Powers v. City of Yonkers, 114 N. Y. 145, 21 N. E. Rep. 132; Mayor, etc., v. Crawford, 111 N. Y. 638, 19 N. E. Rep. 501; Graf v. Cunningham, 109 N. Y. 369, 16 N. E. Rep. 551; Taylor v. Mayor, 83 N. Y. 625;Heckman v. Pinkney, 81 N. Y. 211;Gibson v. Lenane, 94 N. Y. 183;Rodbourn v. Wine Co., 67 N. Y. 215;Lumbard v. Railroad Co., 55 N. Y. 491; 15 Amer. & Eng. Enc. Law, 78, 84.

The first question presented for decision is whether there was anything due from the owner to the contractor, according to the terms of the contract, when the lien was filed. This depends on whether there is any evidence to support the finding of the referee that the plastering had been substantially finished at the time of the filing of the lien, for according to the contract the third payment of $800 was to become due when the work had progressed to that extent. Evidence was given in behalf of the owner tending to show that it was worth $200 to complete the plastering, and that the mason who did it was paid that amount. The witnesses for the plaintiffs, however, testified that it was worth much less. As the conflict in the evidence raised a question of fact, the version most favorable to the plaintiffs, and most strongly tending to sustain the finding of the referec, must be accepted as that upon which he acted.

The only witnesses for the plaintiffs as to the quantity or value of the unfinished plastering were the defendants Newman, who, as subcontractors with Smalle, were engaged in doing the mason-work when the lien was filed, and they stopped work on that account. One of these gentlemen testified, in substance, that the cornice bad not been run nor the last cost put on the main hall; that the stairs were not up, ‘so it was not plastered under the stairs;’ that he could not say that the plastering was all done in the secondstory hall; that ‘it was not finished,-that is, it had not the last coat;’ and that it would cost from $20 to $25 to complete the plastering in the hall. The other subcontractor testified that the last coat on the side walls of the parlor and the last coat in the entrance hall were not on, and about 40 feet of cornice had not been run; that the stairs were not wholly up, and not plastered; that the plastering was not done in the second-story hall, ‘and, of course, the plastering was not on all the stairs;’ ‘I have said four times there was no plastering done under the staircases and in the hall;’ that it was worth about $30 to finish the plastering. All of the witnesses for the defendant testified that there was more plastering to be done, and that it would cost more than the subcontractors stated in their testimony.

Although the referee found that the sum of $200 was paid for completing the plastering, he refused to find that it was fairly and reasonably worth that amount. The learned general term apparently held that the plastering was not finished, because they say in their opinion that, ‘as between contractor and owner, nothing was due under the contract.’ The third payment, of $800, was not simply for the plastering, but for the plastering and all other work that necessarily preceded it, after the completion of the exterior, which made the second payment due. The cost of completing the stairs must be added to the cost of completing the plastering, for the latter could not be done until the former had been done. The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the contract, and has succeeded, except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission. Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 88 N. Y. 648; Phillip v. Gallant, 62 N. Y. 256, 264;Glacius v. Black, 50 N. Y. 145, 67 N. Y. 563, 566;Johnson v. De Peyster, 50 N. Y. 666;Sinclair v. Tallmadge, 35 Barb. 602. But when, as in this case, there is a willful refusal by the contractor to perform his contract, and he wholly abandons it, and after due notice refuses to have anything more to do with it, his right to recover depends upon performance of his contract, without any omission so substantial in its character as to call for an allowance of damages, if he had acted in good faith. While slight and insignificant imperfections or deviations may be overlooked, on the principle of de minimis non curat lex, the contract in other respects must be...

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