186 N.Y. 407, Easthampton Lumber and Coal Co., Ltd. v. Worthington

Citation:186 N.Y. 407
Party Name:EASTHAMPTON LUMBER AND COAL COMPANY, LIMITED, Respondent, v. LOUISE WORTHINGTON, Appellant.
Case Date:November 27, 1906
Court:New York Court of Appeals
 
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Page 407

186 N.Y. 407

EASTHAMPTON LUMBER AND COAL COMPANY, LIMITED, Respondent,

v.

LOUISE WORTHINGTON, Appellant.

New York Court of Appeal

November 27, 1906

Argued November 15, 1906.

Page 408

COUNSEL

John Burlinson Coleman for appellant. The builder, plaintiff's assignor, did not substantially perform his contract, and build the house according to the plans and specifications. ( Smith v. Brady, 17 N.Y. 173; Nolan v. Whitney, 88 N.Y. 648; Crouch v. Gutman, 131 N.Y. 45; Spence v. Ham, 27 A.D. 379; Anderson v. Petereit, 86 Hun, 600; Hollister v. Mott, 132 N.Y. 18; Schultze v. Goodstein, 180 N.Y. 248.)

Timothy M. Griffing for respondent. The contractor substantially performed the contract as modified by the parties. ( Woodward v. Fuller, 80 N.Y. 312; Nolan v. Whitney, 88 N.Y. 648; Crouch v. Gutman, 134 N.Y. 45.)

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

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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 two or three 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...

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