Dannat v. Fuller

• Decision Date: 10 June 1890
• Citation: 120 N.Y. 554,24 N.E. 815
• Parties: DANNAT et al. v. FULLER.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 554

24 N.E. 815

DANNAT et al.

v.FULLER.

Court of Appeals of New York,

Second Division.

June 10, 1890.

Appeal from supreme court, general term, fourth department.

The judgment below was upon the report of a referee.

BROWN, J., dissenting. Reversing 43 Hun, 633, mem.

John D. Kernan, for appellant.

Henry W. Bentley, for respondents.

HAIGHT, J.

This action was brought to recover damages for the alleged failure of the defendant to perform his contract within the time specified, for the constructing and setting up on plaintiffs' premises of a circular sawing machine or mill. The defendant had entered into an agreement with the plaintiffs in which he had agreed, within the space of 30 days next after the date thereof, to construct and set up, upon the plaitiffs' premises, a circular sawing-machine, complete in every respect, according to the specifications embraced in the contract, with the capacity of sawing 10,000 feet of lumber from ordinary logs in 10 consecutive hours for the price of $920, payable in 6 months from the completing and proving of the mill. The plaintiffs agreed to furnish the labor of one wood-working mechanic whose labor was to be performed under the direction of the defendant or his agent; and also to furnish the necessary timber for foundations and other wood-work, together with the nails and screws for the same. The contract was in writing, signed in duplicate, dated April 20, 1881, The referee found as facts that the mill arrived at Glendale, the nearest railroad station to the plaintiffs' premises, about May 30, 1881, and was within three or four days thereafter drawn to the plaintiffs' premises by their team; that when the mill had arrived the plaintiffs had constructed the foundation for the mill, excepting they had not provided the timbers for the superstructure on which the mill was to rest, and so stated to Singer, the defendant's agent, requesting him to go with their team and servant to a lumberman some five miles distant, and procure the timbers; that Singer consented, and went for the timbers, but that it was some 12 days before he could procure to be delivered the lumber required for that purpose, and that during the erection of the mill the wood-working mechanic of the plaintiffs was called from the work of assisting Singer for a few days; that the plaintiffs' neglect to transport the mill from the station to their manufactory, where it was to be set up, necessarily delayed the defendant 4 days, and the failure to furnish timber for the mill to rest on, and their wood-working mechanic being called away from the work, necessarily delayed the defendant 26 days more in the construction of the mill, making in all 30 days. He further found that the mill was never completed so as to perform the requirements of the contract, and that on the 26th day of August, 1881, the plaintiffs gave notice to the defendant that they rejected the mill. He further found as a fact that the rental value of the mill during the period was $25 per day; and, as a conclusion of law, that the plaintiffs were entitled to recover damages for the non-completion of the mill within the time specified in the contract for 54 days, amounting to the sum of $1,350, with interest thereon from the date that the mill was rejected. An exception was taken to this conclusion of the referee. The defendant requested the referee to find as a fact that the plaintiffs did not perform the contract on their part as to time, and that the parties waived such performance by their acts; which request was refused, and an exception taken by the defendant.

Assuming, as is claimed by the plaintiffs, that time was the essence of the contract, it distinctly appears that the mill could not be placed in position until the foundation timbers had been furnished, and the structure upon which the mill was to rest completed. The performance of this part of the contract on the part of the plaintiffs was required before the defendant could proceed and complete the contract on his part. It is a well-settled rule that, where one party demands strict performance as to time by another party, he must perform on his part all the conditions which are requisite in order to enable the other party to perform his part; and a failure on the part of the party demanding performance to do the preliminary work required, in order to enable the other party to complete his within the time limited, operates as a waiver of the time provision in the contract. Stewart v. Keteltas, 36...