Cawley v. Weiner

• Decision Date: 13 July 1923
• Citation: 236 N.Y. 357,140 N.E. 724
• Parties: CAWLEY v. WEINER et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 357

140 N.E. 724

CAWLEY

v.WEINER et al.

Court of Appeals of New York.

July 13, 1923.

Action by Anthony B. Cawley against Henry Weiner, Annie E. Weiner, and another, From a judgment of the Appellate Division (204 App. Div. 886,197 N. Y. Supp. 903) affirming a judgment in favor of plaintiff, the named defendants appeal.

Reversed and remanded.

Appeal from Supreme Court, Appellate Division, Second Department.

Harry W. Moore, of Mineola, for defendants appellants Weiner.

Gunn & Gunn, of Port Washington (Albert E. Gunn and Hartford N. Gunn, both of Port Washington, of counsel), for plaintiff, respondent.

Murphy, Aldrich & Guy, of Troy, for defendant Thorpe.

CRANE, J.

[1] The plaintiff, a builder, constructed a bungalow under contract with the defendants at Port Washington, Nassau county, New York. After its alleged completion, he filed a mechanic's lien for the balance due him and commenced this action for its foreclosure. He has been awarded the full amount claimed to be due, less a small amount on his claim for extras. The county judge before whom the case was tried made his findings of fact and conclusions of law, which have been unanimously affirmed by the Appellate Division. We, in reviewing this case, are bound by these findings.

The correctness of the judgment has been challenged upon two grounds: First, the exclusion of evidence showing defects and failure to comply with specifications on the ground that the defects were waived; and second, that the findings as made do not support the judgment.

The findings are to the effect that on the 31st day of January, 1921, plaintiff entered into a contract in writing with the defendants to erect and finish a new dwelling and garage for the sum of $8,500, and that between the 31st day of January, 1921, and the 9th of June of the same year the plaintiff entered into and upon the performance of said contract, which during the progress of the work was modified at the request and at the consent of the defendants in five particulars therein specified, which need not now be mentioned.

It is further found:

‘That the plaintiff duly substantially performed all the terms and conditions of said contract, so modified as above set forth, on his part to be performed, and did well and sufficiently erect and finish said dwelling and garage agreeably to the drawings and specifications mentioned in the contract, as modified as above set forth.’

It appears that about the 1st of June, 1921, the defendants entered into possession of the bungalow erected on their property and then prepared and handed to the plaintiff a statement of things which they considered necessary for the completion of the house. This statement consisted of 17 items which the defendants insisted should be changed or furnished.

Upon the trial the defendants offered to prove that the plaintiff had failed in the performance of his contract in 3 particulars not specified in this list. This evidence upon objection and over exception was excluded by the trial judge. He ruled that when the defendants moved into the house, which was not then complete, and specified certain objections to the work, that they had waived all other defects or omissions and were estopped from proving them in an action by the contractor for the price.

The complaint alleged that the plaintiff had ‘duly substantially performed’ all the terms and conditions of the contract as modified. It does not allege complete performance, but substantial performance. The modifications alleged have nothing to do with the point we are now discussing and need not be montioned. Defendants attempted to prove that the contractor had failed to perform or had defectively performed his contract in 3 particulars: First, that the floor sagged; second, that the plaintiff omitted a supporting arch under the living room fireparace as required by the specifications; third, that there was a half-inch crack in the brink wall composing the first story of the building.

The trial judge excluded all evidence as to these items on the ground that they were not specified in the list of defects and omissions given to the plaintiff before the bringing of the action. The rulings and exceptions to this line of attempted proof are many, for the defendants' counsel, not only sought to cross-examine the plaintiff and his witnesses upon these defects, but also sought to offer direct and expert testimony in reference to them.

The court said:

‘I think that having made a specification of objections, I think the defendants have estopped themselves from making other objections unless you show that some situation has developed, showing that it was impossible to discover the other things at the time the former objection was made. * * * I think it is a principle of law well established that your clients after making this list of breaches of contract, they could go ahead and complete or leave it as it was an offset, but they have specified what they were with the intent that it should be relied upon. Until you show that there was something that could not be discovered at the time this list was made, I will hold that you are limited to that.’

[2] We think the trial court should have received this evidence, and that it was error to exclude it. The plaintiff made a contract to build a house for the defendants. He says that he has substantially performed his contract and wants his pay. The defendants attempt to prove that the contractor has failed in performance. The trial court does not permit the proof upon the ground that the defendants had previously submitted a list of defects and omissions, and the proof offered pertains to others than those specified.

This is not a case of the sale of goods. Spence v. Ham, 27 App. Div. 379,50 N. Y. Supp. 960. The house was built upon the defendants' property. They could move into it, live in it, and in this sense accept it, without waiving any defects in construction. Gray v. James, 128 Mass. 110.

Unless the plaintiff were in some way harmed by the action of these defendants in furnishing him with a list of the defects, how are they estopped from...