Easthampton Lumber & Coal Co. v. Worthington

• Decision Date: 27 November 1906
• Citation: 79 N.E. 323,186 N.Y. 407
• Parties: EASTHAMPTON LUMBER & COAL CO., Limited, v. WORTHINGTON.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 407

79 N.E. 323

EASTHAMPTON LUMBER & COAL CO., Limited,

v.WORTHINGTON.

Court of Appeals of New York.

Nov. 27, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Easthampton Lumber & Coal Company, Limited, against Louise Worthington. From a judgment of the Appellate Division (95 N. Y. Supp. 1126), affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

John Burlinson Coleman, for appellant.

Timothy M. Griffing, for respondent.

VANN, J.

This action was brought to foreclose a mechanic's lien filed by the contractor to secure payment of a balance alleged to be due upon the contract price and for extra work in erecting a dwelling house for the defendant in the town of Easthampton, county of Suffolk. The trial court directed judgment for the plaintiff, the assignee of the contractor, for the entire amount claimed; and, while the findings were in the short form, it was found specifically ‘that there was a substantial performance of the contract by the contractor.’ The Appellate Division affirmed, but by a divided vote. The contract was in writing, and required the contractor to provide all the materials and perform all the work mentioned in the specifications, and to complete the building by the 15th of May, 1899. The contract price was $3,150, and the extra labor and materials amounted to $441.36, according to the claim of the contractor. The owner had paid $2,600, leaving a balance of $991.36, for which, with interest, judgment was rendered.

While the copy of the specifications used by the contractor differed somewhat from that retained by the architect, we shall confine ourselves to the specifications delivered to the contractor, which he testified were a part of the contract and were used by him to build the house. Those specifications provided that ‘the house is to be set on 5-inch piles set 4 feet in ground, to be of acceptable local wood to be approved by the architect.’ The contractor testified that ‘the house was set on locust posts. They were not set 4 feet in the ground. * * * It was not necessary, on the sand or beach as that was. They went as far as perhaps 2 or 3 feet, down to frost. These piles were set upon flat stones. The flat stones were not called for in the specifications. It was better with the flat stones.’ The specifications required ‘hip rafters, 2 inches by 10 inches.’ No hip rafters were put in. The other rafters were to be ‘2 inches by 6 inches, 20 inch on centers'; but while the contractor put in rafters of the required size they were ‘but 24 inches on the center.’ He testified that he did this ‘because it makes a better job of it. It was no gain to me at all.’ The first-story beams were to be 2 inches by 10 inches, but beams 2 inches by 9 were put in, ‘because it was discovered that they were strong enough and it reduced the price.’ ‘Stair horses, 3 inches by 10 inches,’ were required, but none were put in, because in the opinion of the contractor they were not needed. ‘Ribbon strips, 1 inch by 7 inches,’ although required, were not put in, but smaller timber was used, because, as the contractor thought, ‘it made just as good a job as the others, there was really no change made, the timber used would cost more than the ribbon strip.’ ‘Bridging, 2 inches by 2 inches,’ was called for, but not put in, and the explanation given was that ‘bridging 2 by 2 was out of stock, and they did not keep it in stock at any time.’ The entire frame was to be covered with ‘7/8-inch sheathing,’ which in turn was to be covered with ‘black Neponset building paper, made by F. W. Bird & Son, E. Walpole, Mass.’ The contractor testified that he did not use this paper ‘because it was not to be had. I used Child's paper. I consider that the red is best, and is used in preference to the black on Long Island. The black Neponset paper was not in stock at the time. * * * I should say that it [Child's paper] was as good as the other. * * * It is as expensive as the other, as far as I know. I don't know just what the black would cost.’ The manager of the plaintiff, testifying in its behalf, said that he knew of black Neponset paper, and that it was a well-known article to the trade, but that the paper furnished he considered as good as the black Neponset. The architect testified that the paper used was porous and no better than newspaper; that it cost but 50 cents a roll, while black Neponset cost about $1.75 a roll. ‘Sampson's spot braided cotton sash cord,’ although called for, was not used, but Silver Lake cord substituted, because, as the contractor testified, ‘I never heard of Sampson's cord. I did not know anything in regard to the two different kinds of cord. The kind I used, Silver Lake, is considered the best in the market. I did not know anything about Sampson's and I know that Silver Lake is good.’ Another witness called by the plaintiff testified that the cord used ‘is good quality sash cord, the same as is used on the eastern end of Long Island. As compared with Sampson's cord, I do not know how they would compare in cost.’ The architect testified that the cord used was not durable, and that it is already partly worn out, while that called for by the specifications is strong and durable. The specifications required ‘all tin to be of Merchant's Alaska for lining, flashing, and gutters.’ The contractor did not use the kind specified, saying, ‘I suppose that Alaska tin is some special brand. There are a...