Conlan v. Leonard
| Decision Date | 13 November 1911 |
| Citation | 82 N.J.L. 108,81 A. 492 |
| Parties | CONLAN et al. v. LEONARD et al. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Essex County. Action by Patrick H. Conlan and others against William N. Leonard and others, receivers of the Hudson County Water Company. Judgment for plaintiffs, and defendants bring error. Affirmed.
Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ.
McCarter & English, for plaintiffs in error.
Pitney, Hardin & Skinner, for defendants in error.
This is a suit on a mechanic's lien to recover against the receivers of the Hudson County Water Company, who upon their own motion were substituted as defendants. The litigation grows out of two contracts, the one is dated August 6, 1909, and the other September 28, 1909, which involve the connecting up of certain wells, laying pipe, connecting boilers and machinery at the pumping station of the water company at Belleville, Essex county, in which county the lien claim was filed. The payments under these contracts were provided to be made monthly, less 15 per cent. upon estimates to be made by the company's engineer, of the amount of work done and the value of the material delivered. Such estimates were offered amounting to $21,117.10, less an allowance for materials to be taken away by the plaintiffs, amounting to $4,016.12, leaving a balance of $17,100.98, which was the amount for which judgment was rendered after adding interest, viz., $18, 186.18, and admitted to be the correct amount, if the plaintiffs were entitled to recover any amount. The suit was commenced on March 23, 1910. The declaration consisted merely of the common counts, to which the general issue and the statutory plea were filed. The contractors had on March 22, 1910, assumed to rescind both these contracts because of the continued failure to make the payments provided for in the contract at the time specified, including failure to make any of the payments coining due since November 1, 1909. Motions to nonsuit and to direct a verdict for the defendants were refused, and error has been assigned thereon.
The grounds upon which the motion to nonsuit was rested were thus stated: And the ground for a direction in the following language: "That there has been no case made out which would entitle the jury to conclude that the plaintiffs should have a verdict." The court directed a verdict for the plaintiffs, but error has not been assigned upon this action; hence the inquiry relates solely to the property of refusing to nonsuit and to direct a verdict for the defendant.
Passing by the fact that the reasons above given for the motions do not seem to have acquainted the court with the precise point involved (Wallace Muller & Co. v. Leber, 65 N. J. Law, 198, 47 Atl. 430; Jones v. Whittier, 77 N. J. Law, 715, 73 Atl. 497), we may examine the arguments presented in the defendant's brief. The defendants assert that the plaintiffs by their suit seek to recover for materials furnished and work actually performed, that it is not a case where the entire contract price is due, nor is it a suit to recover one or more installments as such under the contract, because the plaintiffs had assumed to rescind, and in consequence had refused further to perform; that, the contracts concededly being yet unfulfilled, unless the rescission was justified, the plaintiffs, in order to recover, must prove an acceptance of the work performed, the question of substantial performance not being involved. Bozarth v. Dudley, 44 N. J. Law, 304, 43 Am. Rep. 373; Feeney v. Bardsley, 66 N. J. Law, 239, 49 Atl. 443; Mackinson v. Conlon, 55 N. J. Law, 564, 27 Atl. 930.
In reply to this argument, we hold that the frame of the pleadings would permit a recovery of an installment due under the contract, or upon a...
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