Spence v. Ham

• Decision Date: 05 June 1900
• Parties: SPENCE v. HAM.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 220

57 N.E. 412

SPENCE

v.HAM.

Court of Appeals of New York.

June 5, 1900.

Appeal from supreme court, appellate division, Third department.

Action by George Spence against Albert W. Ham for balance due on a building contract. From a judgment of the appellate division (50 N. Y. Supp. 960) reversing a judgment in favor of plaintiff, plaintiff appeals. Affirmed.

This action was brought to recover a balance alleged to be due the plaintiff from the defendant upon a building contract entered into by them on the 15th of September, 1888. The plaintiff alleged performance, admitted the payment of $2,500 on account, and sought to recover a balance of $2,044.97, which included the sum of $644.97 claimed to be due for extra work. The defendant, among other defenses, denied that the contract had been performed on the part of the plaintiff. The referee before whom the action was tried found generally that the contract had been substantially performed, but he also found specifically as follows: ‘There were slight omissions and deviations in the performance of the contract and specifications by the plaintiff from the strict letter of the contract, but such omissions and deviations were through inadvertence on the plaintiff's part, and were not willful or intentional. Some of said omissions and deviations were at the request and with the consent of the defendant. Other omissions and deviations were necessary or desirable if the building was to be properly constructed, and such omissions would be usual and customary in a house built on the plan of the house in question. Such omissions and deviations did not prevent a substantial performance of the contract, and were in no wise repugnant to it. Such omissions and deviations of the work, arising neither from the consent of the owner nor necessity, consisted chiefly as follows: Failure to place bridging in certain places provided by the contract; failure to supply certain collar braces; failure to have girders of certain length, and properly placed; failure to have trimmers and headers double instead of single according to the contract; failure to put drawers and shelves in closets, pursuant to plans and specifications; failure to place wooden partition on a brick wall in basement. Such defects and other small defects appearing in the building, proved to be due to any fault on the part of the plaintiff, could be remedied for fifty dollars, which is an adequate allowance for the same under the evidence. The defendant might have been entitled to a greater allowance on account of the defective performance if he had proved and claimed what it would have cost to complete the contract strictly according to its terms. But he did not give such proof, and hence there is no basis for such allowance.’ He found, as a conclusion of law, that the plaintiff was entitled to recover the sum of $202.32 for extra work, together with the balance unpaid upon the original contract, after deducting $50 on account of ‘immaterial defects in the plaintiff's work.’ The judgment entered accordingly was reversed by the appellate division; the order of reversal being general in form, with no statement that the judgment was reversed or the new trial granted upon a question of fact.

George B. Wllington, for appellant.

Charles E. Patterson, for respondent.

VANN, J. (after stating the facts).

According to the opinion of the appellate division, it was the intention of that court to reverse the judgment upon the facts as well as the law; but, as the order of reversal is silent upon the subject, the statute compels us to presume that the judgment was not reversed upon a question of fact. Code Civ. Proc. § 1338; Bomeisler v. Forster, 154 N. Y. 229, 48 N. E. 534,39 L. R. A. 240;Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051. It is important for counsel, in preparing a judgment or order to carry into effect the decision of an appellate division, to see that it is so drawn as to properly express what the court actually decided. We have repeatedly called attention to the necessity, when the reversal is on the facts or when the affirmance is unanimous, of so stating in the order or judgment, yet cases are constantly coming before us in which the rights of parties are sacrificed by a disregard of the practice established by the legislature or the court.

The condition of the record leaves only three classes of errors open to our consideration: (1) Whether, upon the facts found by the referee, his conclusion of law is correct; (2) whether an essential fact was found without any evidence which, according to any reasonable view, would warrant it; (3) whether a material error was committed in receiving or rejecting evidence. Gannon v. McGuire, 160 N. Y. 476, 55 N. E. 7;Petrie v. Trustees, 158 N. Y. 458, 53 N. E. 216;Edson v. Bartow, 154 N. Y. 199, 48 N. E. 541;Otten v. Railway Co., 150 N. Y. 395, 44 N. E. 1033. If the referee committed one or more errors under this classification, the order of the appellate division reversing his judgment upon a question of law only should be affirmed; otherwise, it should be reversed.

The referee found that the contract in question had been substantially performed by the plaintiff, yet he also found certain omissions and defects for which he allowed compensation to the defendant, and certain other omissions and defects for which he allowed no compensation because the defendant did not prove what it would cost to complete the codntract in this regard. Thus, upon the face of the report, the question airses whether the burden was upon the contractor or the owner to show what it would cost to remedy defects. The question, as presented by the record, is the same as if the plaintiff had alleged substantial instead of complete performance, because that is the basis upon which he recovered. In order to recover at all, he was obliged to show either full or substantial performance. Upon showing full performance he could recover the full contract price, but upon showing substantial, which is but partial, performance, he could only recover the contract price after deducting the sum required to remedy the omissions which, when remedied, would make performance complete. Each party would thus get what he was equitably entitled to,-the plaintiff, payment for all that he did; and the defendant, compensation for all that the plaintiff omitted to do. Clearly, there should be no recovery for what the plaintiff agreed to do but did not do, yet such is the effect of the decision we are reviewing. Substantial performance is performance except as to unsubstantial omissions, with compensation therefor. When the omission is slight and unintentional, in order to prevent the hardship of a failure to recover even for that which was well done, compensation is substituted, pro tanto, for performance. This is the modern rule, adopted upon the theory that the parties are presumed to have impliedly...