Smith v. Wetmore

• Decision Date: 24 May 1901
• Citation: 167 N.Y. 234,60 N.E. 419
• Parties: SMITH v. WETMORE et al.
• Court: New York Court of Appeals Court of Appeals

167 N.Y. 234

60 N.E. 419

SMITH

v.WETMORE et al.

Court of Appeals of New York.

May 24, 1901.

Appeal from supreme court, appellate division, Second department.

Action by Alonzo E. Smith against Charles W. Wetmore and others. From a judgment of the appellate division (58 N. Y. Supp. 402) affirming a judgment in favor of plaintiff, Oliver L. Jones and certain other defendants appeal. Affirmed.

Charles F. Brown, J. Langdon Ward, and George W. Weiffenbach, for appellants.

Henry A. Monfort, for respondent.

O'BRIEN, J.

This was an action by a contractor to foreclose a mechanic's lien for the balance of the contract price alleged to be due. The only issue of fact presented by the pleadings was the performance of the contract by the plaintiff. Considerable proof was given upon the subject, but the learned trial court found that the plaintiff had performed the contract, and that there was a balance due to him of something over $6,000. The appellate division affirmed the judgment, and the decision of that court was unanimous. Therefore all the disputed facts are to be taken by this court as settled beyond all further controversy, and we must assume that the facts so found are supported by evidence. The appeal can be sustained, if at all, only upon the exceptions taken at the trial and presented by the record. This was an equity action, tried before the court, and the judgment should not be disturbed upon any ruling relating to the admission or exclusion of evidence, unless it appears that the error was of such a substantial character as to affect the result, or prejudice the rights of the defeated party. The record presents only one exception that calls for any discussion, and, indeed, it is the only one that has been discussed by the learned counsel for the appellants. It appears that the contract for the performance of the work contained a provision that, when the work was completed in accordance with the contract and specifications of the engineer, and he should make a final estimate of the quality, quantity, and value of the work according to the terms of the contract, then the full amount appearing to be due to the contractor should be paid to him at such time and place as he might designate upon presenting the certificate of the engineer of the amount due. The contractor did not procure this certificate, but gave proof at the trial sufficient to satisfy the court that he had performed the contract. It was held in the case of Weeks v. O'Brien, 171 N. Y. 199, 36 N. E. 185, that, where a contract contains a provision of this character, it is essential to allege in the complaint performance of that condition, or set forth facts excusing the party who has failed to procure it. It was held that the certificate was a condition precedent to the right to maintain the action, and while the failure of the party to procure it might be excused, yet it was necessary to plead the facts upon which the excuse was founded. In this case the complaint contained no allegation that the certificate had been procured, nor any statement of facts excusing the defendant from the necessity of producing it at the trial. But the learned court below, in affirming the judgment, also directed an amendment of the complaint in this respect. The point is now raised by the learned counsel for the defendant that the court below had no power to amend the pleading so as to cover this defect in a case where the proof had been admitted at the trial against the objection and exception of the defeated party. We will assume, for the purposes of this appeal, that the learned counsel is correct in that proposition. If, however, there was proof given at the trial, without objection, to warrant a recovery without the certificate, it was competent for the learned court below upon appeal to amend the complaint by conforming it to the facts proved. It has also been held by this court that a stipulation in the contract requiring the certificate of the engineer or architect as a condition precedent to the right to maintain an action for the contract price has no application where a notice has been given to the contractor that the owner himself would resume charge of the work and complete the contract. Weeks v. O'Brien, supra; Beardsley V. COOK, 143 N. Y. 143, 38 N. E. 109;RIngle V. irON WORKS, 149 N. Y. 439, 44 N. E. 175.

It appears in this case that the defendant gave written notice to the contractor that he would himself proceed to construct and...