Charlton v. Scoville

• Decision Date: 15 January 1895
• Citation: 39 N.E. 394,144 N.Y. 691
• Parties: CHARLTON et al. v. SCOVILLE et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 691

39 N.E. 394

CHARLTON et al.

v.SCOVILLE et al.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from supreme court, general term, Fifth department.

Action by John Charlton and another against Cora I. Scoville and another to foreclose a mechanic's lien in which defendant filed a counterclaim. From a judgment of the general term (22 N. Y. Supp. 883) modifying a judgment for plaintiffs, defendants appeal. Affirmed.

This is an action brought to foreclose a mechanic's lien filed by the plaintiffs against the premises owned by the defendant Cora I. Scoville, in the village of Tonawanda, in the county of Erie, in this state. The defendant Charles H. Scoville is the husband and agent of the other defendant, and acted as her agent in the matters hereinafter spoken of. The answer of the defendants denied many of the allegations contained in the complaint, and set up a counterclaim amounting to between six and seven hundred dollars. The action was tried at the Erie special term in equity, held at Buffalo, and the following are some of the facts found by the court upon such trial: On the 26th of August, 1890, the plaintiffs entered into a contract with the defendant Charles H. Scoville to do certain work towards the building of a house upon a lot owned by the defendant Cora I. Scoville, in the village of Tonawanda, in this state, for the sum of $3,980, upon the terms stated in the contract. In the contract executed by the parties were subdivisions 4 and 12, which read as follows: ‘(4) The contractors shall, within twenty-four hours after receiving written notice from the architect to that effect, proceed to remove from the grounds or building all materials condemned by him, whether worked or unworked, or take down all portions of the work which the architect shall condemn as unsound or improper, or as in any way failing to conform to the drawing and specifications, and to the conditions of this contract. The contractors shall cover, protect, and exercise due diligence to secure the work from injury, and all damage happening to the same by their neglect shall be made good by them.’‘(12) Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on their part herein contained, such refusal, neglect, or failure being certified by the architect, the owner shall be at liberty, after three days' written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract; and, if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractors for the said work, and to enter upon the premises and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and, in case of such discontinuance of the employment of the contractors, they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractors, but, if such expense shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.’ The plaintiffs sublet the carpenter work to one William Stokes, who again sublet the same to his brother Michael, who, with several carpenters, commenced work on the premises on the 22d day of September, 1890, and continued to work thereon until September 30, 1890, and during that time neither of the plaintiffs gave any personal attention to the work, and William Stokes but slight attention. On September 30th the frame of the building, up to the top of the second story, had been erected, and certain materials used in erecting the structure had been delivered upon the premises by the employés of the plaintiffs. A large part of the work done on the building up to this time was not in accordance with the plans or specifications, and the materials used were improper, and not in accordance with the same; and, in order to remedy these defects, it would be necessary to take the building down. On the 30th of September, the architect, assuming to act under the provisions of the contract, gave to the defendant Charles H. Scoville a certificate in writing that the carpenter work was not being done in accordance with the plans and specifications, and that the plaintiffs had employed incompetent and unskillful workmen to do the work, and had used unseasoned hemlock for joists and sheathing, and upon the above-mentioned grounds he advised the defendant to protect his interests as provided for in part 12 of the contract. Upon receipt of this paper, the defendant Charles H. Scoville prepared and signed a notice, in writing, directed to the plaintiffs, and dated September 30, 1890, which notice reads as follows: ‘Messrs. J. & T. Charlton: I herewith give you three days' written notice, to expire October 4th, at 9 a. m., to remove all labor and materials condemned by the architect, Mr. F. William Fisher, and provide such materials as called for in the specifications. And I also notify you that I shall make use of the power given me, under part 12 in contract, to terminate the employment of the contractor who shall do said carpenter work. Inclosed find the certificate of the architect, Mr. F. William Fisher. Charles H. Scoville, Tonawanda, N. Y.’ This notice inclosed the certificate of the architect above spoken of, and was served personally on one of the plaintiffs on September 30th. After some...