Thomas v. Stewart

• Decision Date: 22 March 1892
• Citation: 30 N.E. 577,132 N.Y. 580
• Parties: THOMAS v. STEWART et al.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 580

30 N.E. 577

THOMAS

v.STEWART et al.

Court of Appeals of New York,

Second Division.

March 22, 1892.

Appeal from supreme court, general term, second department.

Action by Edwin L. Thomas against Aslan Sahagian, William H. Stewart, and others. From a judgment of the general term affirming a judgment entered on the decision of the court at special term against Aslan Sahagian, and in favor of the other defendants and plaintiff, said defendant Aslan Sahagian appeals. Judgment reversed, unless modified by stipulation within 30 days.

Joseph F. Daly, for appellant.

Ralph E. Prime, John H. Ferguson, and Matt. H. Ellis, for respondents.

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

This was an action for the foreclosure of a mechanic's lien filed under the general act against certain property in the city of Yonkers belonging to the defendant Sahagian. Other lienors, who were joined as defendants, appeared and asserted their claims by answers duly served upon the owner. By a contract dated September 28, 1888, the firm of Stewart & Edmonds agreed to furnish the materials and do the work required by the carpenter's plans and specifications to erect a four-story brick building for Mr. Sahagian, who agreed to pay therefor the sum of $6,176, in four payments, each to be made on the certificate of the architect, the first, of $1,500, when the building was inclosed and the roof on; the second, of like amount, when the floors were laid, ‘partitions set, and ready for mason;’ the third, of $1,600, when the windows were in ‘and standing trim x on;’ and the fourth, of $1,576, when the contract was completed and the building accepted. The first payment was made without objection, and the refusal of the owner to make the second resulted in a refusal of furtherperformance by the contractors. Each party to the contract claimed that the other made the first default, and the trial court found against the owner on that issue. The contractors abandoned the contract March 5, 1889, and the next day made a general assignment for the benefit of their creditors to the defendant Stewart. March 23, 1889, the owner caused notices to be served upon the contractors and their assignee requiring them to complete the contract according to the plans and specifications, and on their omitting to do so, although there was no provision in the contract on the subject, he completed it himself at an expense of $3,989. He conceded a recovery to the extent of the difference between that sum and the amount unpaid on the contract, which is enough to protect the plaintiff, but not enough to fully pay all of the other lienors. The trial judge found that by the 15th of February, 1889, the contractors had performed all the work and furnished all the materials required to entitle them to the second payment, and that they demanded a certificate from the architect accordingly, but that he wrongfully and unreasonably refused to give them one. They also demanded the second payment from the owner, after informing him of the facts, but he refused to pay any part thereof without the certificate of the architect, and soon after they refused to complete the building. Upon the request of the defendant it was further found that at the time of the abandonment of the contract the contractors ‘had not made and set in each partition back of each water-closet a four by ten inch ventilator with round tin ventilator in each closet, and extended two feet above the roof, as required by the specifications;’ that they ‘had not placed in the cellar, beneath the girders, the two locust posts,’ as so required; and that window-frames made of cottonwood ‘were put in without the knowledge or consent’ of the owner. The court refused to find, upon the like request, that several other things required by the specifications had not been done. The appellant does not ask for a reversal of the judgment, but for a modification thereof by deducting all that was allowed against him, except the difference between the amount unpaid and the cost of completion.

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

If the second installment was due when the demand of payment was made by the contractors, they could lawfully decline to go on with the contract, because the owner had refused performance on his part. Graf v. Cunningham, 109 N. Y. 369, 16 N. E. Rep. 551; Schwartz v. Saunders, 46 Ill. 18. If the second installment was not then due, the contractors were in default, and the lienors, who claim under them, are entitled to a recovery only to the extent conceded by the owner, or to the difference between the amount unpaid at the date of such default and the sum required to complete the contract. Van Clief v. Van Vechten, (N. Y. App.) 29 N. E. Rep. 1017; Malbon v. Birney, 11 Wis. 108.

By the terms of the agreements, the second payment was to become due when the floors were laid, ‘partitions set, and ready for mason.’ The owner claims that the contractors failed in performance, to the extent necessary to entitle them to the second payment, by omitting several things required by the plans and specifications. The lienors claim that the features omitted were waived by the architect, prevented by the owner, or not required to be done as a condition precedent to the second payment; and evidence was given in support of the claim, but the court made no specific finding upon the subject. The use of cotton-wood in certain window frames, required to be made of pine, was not denied, but one of the contractors testified that, on hearing that the architect objected, he went to see him, and said that cotton-wood could be used as well as pine; that they were merely skeletons, and were covered over with pine casings on the outside and inside. After hearing this explanation, the architect said: ‘You may use those frames, but bring no more cotton-wood on the job.’ The witness further testified that no cotton-wood was used after that, except that some balusters were turned for use on the rear piazza, but they were no part of the work required to be done prior to the second payment. According to the evidence of another witness, no cotton-wood whatever was brought on the premises after the architect objected. The architect testified that he allowed certain window-frames made of cotton-wood to be put in, provided the contractors would use no more cotton-wood in the building, but he claimed that, after that, more window-frames of the same kind were put in against his protest. When, however, he was asked to certify that the second payment was due, he did not mention this as an objection, but based his refusal upon other grounds.

There was other testimony tending to corroborate the theory of either side upon the question of consent to the change, which thus became a question of fact for the trial court to determine, and it will be presumed, in support of the finding that the second payment was due, that the court found in favor of the lienors upon this issue. Ostrander v. Hart, 130 N. Y. 406, 29 N. E. Rep. 744; Thomson v. Bank, 82 N. Y. 1;Burnap v. Bank, 96 N. Y. 125.

But the appellant insists that the architect had no right to substitute an inferior article without the consent of the owner, and the authorities support that position. Glacius v. Black, 50 N. Y. 145; Bigler v. Mayor, 9 Hun, 253. The court, however, found upon evidence that is not printed in the case, but which it is expressly stipulated proved the fact, ‘that...