Beardsley v. Cook

• Decision Date: 09 October 1894
• Citation: 38 N.E. 109,143 N.Y. 143
• Parties: BEARDSLEY v. COOK.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 143

38 N.E. 109

BEARDSLEY

v.COOK.

Court of Appeals of New York.

Oct. 9, 1894.

Appeal from supreme court, general term, second department.

Action by Charles Beardsley against George H. Cook. From a judgment of the general term (22 N. Y. Supp. 36) affirming the judgment of the trial judge, defendant appeals. Reversed.

John H. Clapp, for appellant.

Henry Bacon, for respondent.

O'BRIEN, J.

About the 1st of August, 1890, the defendant entered into a written agreement with the firm of Davis & Fay, builders, whereby they agreed to furnish all the materials and labor in the erection of two houses for the defendant, to be completed on or before January 1, 1891, for the sum of $6,381, to be paid in installments as the work progressed and reached certain stages; the last payment, amounting to the sum of $2,181, to be paid when the houses were completed. About a month afterwards the plaintiff contracted in writing with Davis & Fay to furnish for these houses all the necessary interior and exterior ‘trim,’ including doors, sash, blinds, wainscot, complete, except the Venetian blinds; the window frames and stairs to be all cleaned and prepared for finish in the natural wood,-for the sum of $1,175, to be paid as follows: $150 when sash delivered, $200 when the standing trim was on, $400 when the doors were hung, and $425 when the houses were completed. The builders entered upon the performance of their contract with the defendant, and the plaintiff on the performance of his contract with them, and on the 11th of December, 1890, a considerable part of the work had been done, when the plaintiff procured from the builders a written order upon the defendant, signed by them, and addressed to him, in which they requested the defendant to retain and pay to the plaintiff, from the last payment to be made to them under their contract, the sum of $1,175, according to the terms of their contract with the plaintiff. The defendant wrote across the face of this order his acceptance of the same. This action was brought upon the defendant's contract with the plaintiff as evidence of his acceptance of the order, and the plaintiff has recovered. The defendant's obligation to the plaintiff, as expressed in the acceptance, was that he would retain in his hands from the last payment due upon his contract with the builders sufficient to pay the plaintiff. The management contemplated that the builders would perform their contract with the defendant, and thereby become entitled to the last payment, and that the plaintiff would perform his agreement with the builders, and thus entitle himself to call upon them to pay as they had agreed, and upon the defendant to discharge the obligation assumed by his acceptance. The difficulty in this case arises from the fact that the builders did not perform their contract with the defendant, nor did the plaintiff fully perform his contract with the builders, though perhaps the latter fact is not important except so far as it bears on the question of the amount which remained in the defendant's hands applicable to the last payment. The record discloses a state of facts not within the contemplation of the parties when the order which the plaintiff is seeking to enforce was accepted by the defendant. Some of these facts appear in the findings of the court; others are to be gathered from the undisputed testimony, though the learned trial judge refused to find them at the request of the defendant. By the terms of the contract between the defendant and the builders, the payments were to be made upon the certificate of the architect that performance had been made to entitle the contractor to the particular payment. No such certificate was ever furnished, and there is no finding in the case that it was waived, or unnecessarily or improperly withheld. Wright v. Reusens, 133 N. Y. 298, 31 N. E. 215;Weeks v. O'Brien, 141 N. Y. 199, 36 N. E. 185.

The builders never performed the contract, and never completed the houses. It may be that there was a sufficient excuse for nonperformance, but there is no finding on the subject, and it is not apparent from the proofs. There was a clause in the building contract to the effect that in case they failed to complete the houses, and furnish the necessary materials and labor for that purpose, then the defendant might do it, and deduct the expense of completion from any sums unpaid upon the contract. The defendant did complete the houses under the provision of the contract; whether with or without the consent of the builders is not now very material. But the learned trial judge refused to find that the builders failed to perform their contract; and the amount expended by the defendant in completing the houses, which was a most important element in ascertaining what portion, if any, of the last payment, from which the order in suit was to be paid, ever became due to the contractors has not been found, though requests to that effect were made by the defendant, and proof has been...