50 N.Y. 145, Glacius v. Black

Citation:50 N.Y. 145
Party Name:GEORGE C. GLACIUS et al., Respondents, v. BESSIE BLACK, Appellant.
Case Date:November 12, 1872
Court:New York Court of Appeals
 
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Page 145

50 N.Y. 145

GEORGE C. GLACIUS et al., Respondents,

v.

BESSIE BLACK, Appellant.

New York Court of Appeal

November 12, 1872

Argued Apr. 16, 1872.

COUNSEL

George A. Black for the appellant. A partial performance of an indivisible contract does not extinguish a corresponding proportion thereof, unless the benefit of such performance is voluntarily retained by the creditor. (Civil Code, § 629; Sedgwick on Damages, 212, 215, 216, 222, note 1, 221; Ladue v. Seymour, 24 Wend., 60; Moffet v. Sackett, 18 N.Y. 527; Davis v. Talcott, 12 Id., 188; S. C., 14 Barb., 611; Clark v. Marsiglia, 1 Den., 317; Dillon v. Anderson, 43 N.Y. 232;

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Masterton v. City of Brooklyn, 7 Hill, 71; Durkee v. Mott, 8 Barb., 423.)The work being affixed to real property, the use and occupation of it by the owner does not amount to a voluntary retention. (Smith v Brady, 17 N.Y. 173.) Contracts are to be enforced as the parties made them. (Brown v Curtis, 2 N.Y. , 227; Pike v. Butler, 4 Id., 362; Pullman v. Corning, 9 Id., 97; Smith v. Brady, 17 Id., 173; Cunningham v. Jones, 20 Id., 486; Bonesteel v. Mayor, etc., 22 Id., 167; Tompkins v. Dudley, 25 Id., 272; Walker v. Millard, 29 Id., 379; Brown v. Weber, 38 Id., 188; Roberts v. Opdyke, 40 Id., 264; Ely v. Spofford, Court of Appeals [Transcript, Jan. 21, 1870]; Jackson v. Topping, 1 Wend., 396; Bird v. Smith, 12 Q. B., 781.) Waiver, as applied to contracts, is in fact a new contract. (Ripley v. AEtna Ins. Co., 30 N.Y. 136; Gardiner v. Clark, 21 Id., 404; Cromwell v. Haight, Id., 462.) The intention to waive must be clear. (Roberts v. Opdyke, 40 N.Y. 264; Pike v. Butler, 4 Id., 360.) Plaintiffs have failed to complete their contract, and the judgment should be reversed. (Griffen v. Marquardt, 17 N.Y. 28; Edmonston v. McLoud, 16 Id., 544.)

W. W. Niles for the respondents. A substantial performance of a building contract is all the law requires. (Smith v. Gugerty, 4, Barb., 614; Smith v. Brady, 17 N.Y. 173; Sinclair v. Talmadge, 35 Barb., 602; Colwell v. Lawrence, 24 How. Pr. R., 324; Thomas v. Fleury, 26 N.Y. 32.) Defendant assented to the work as it was being performed, and so accepted it. (Watson v. Gray, 41 N.Y. 385; Colwell v. Lawrence, 24 How. Pr. R., 324; Pike v. Nash, 38 N.Y. 335; Smith v. Brady, 17 Id., 173; Sinclair v. Talmadge, 35 Barb., 602.) Defendant, by allowing plaintiffs to go on after the time limited, waived the forfeiture she might have claimed. (Cox v. Bennett, 1 Greene, 165; Sinclair v. Talmadge, 35 Barb., 602; Watson v. Gray, 41 N.Y. 385; Colwell v. Lawrence, 24 How. Pr. R., 324; Smith v. Brady, 17 N.Y. 173.) The architect's certificate bound the parties. (Butler v. Tucker, 24 Wend., 447;

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Sinclair v. Talmadge, 35 Barb., 602; Smith v. Brady, supra; Oakes v. Moore, 11 Shep., 214; Wyckoff v. Meyers, 44 N.Y. 143.)

CHURCH, Ch. J.

This is an action upon a claim filed under the mechanics' lien law. The contractors are builders, and contracted to make certain alterations and repairs upon the defendant's house for $1, 326; one-half to be paid when the lath were on, and the balance when the work was done completely and accepted. The work consisted principally of taking off an old peak roof and substituting a French or Mansard roof and finishing off the upper story, and making other repairs in the interior of the house. The case was tried before a referee, and is very voluminous. The original report contains fifty-eight distinct findings of fact, besides the conclusions of law, and when the case was made the referee again stated the facts found by him in fifty-nine findings, which are followed by forty-one findings of law, to each of which an exception is taken. The learned judge who delivered the opinion in the court below regarded these last fifty-nine findings of fact as additional to those stated in the original report, but it is not very clear whether they were intended as additional findings or substitutes for those contained in the report. At the close of the first findings, the case states "and hereupon the said owner, for the purpose of a review of the evidence appearing upon the trial, makes the foregoing case, and the said referee states the following as facts found by him. " From this it would appear that the last findings were revised substitutes for the first; but in...

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