Drummond v. Hughes

• Decision Date: 17 June 1918
• Parties: DRUMMOND et al. v. HUGHES.
• Court: New Jersey Supreme Court

104 A. 137

DRUMMOND et al.

v. HUGHES.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

Appeal from Supreme Court.

Action by Isaac Drummond and another, executors of the estate of one Wise, against Richard H. Hughes. From a judgment for defendant, plaintiffs appeal. Affirmed.

Action by the executors of Wise to recover damages for the failure of Hughes to perform properly a contract for the building of a dwelling house. The dwelling was completed in June, 1912, and occupied some time before that by Wise's family. The architect, pursuant to the contract, gave a certificate for the final payment September 28, 1912, and the executor made the payment October 9, 1912. During the interim between the completion of the house and the final payment there was a continuous dispute about the plaster. This continued after the payment, and in 1915 the defendant seems to have been willing to bear part of the expense of making some small repairs. The plaintiffs, however, proceeded to put on new plastering, and in 1916 brought this action.

Durand, Ivins & Carton, of Asbury Park, for appellants. Wilbur A. Heisley, of Newark, for appellee.

SWAYZE, J. (after stating the facts as above). [1] 1. The first ground of appeal cannot be considered. It embraces a large part of the charge, nearly two printed pages, including several distinct propositions. The reason for condemning that practice is as strong under our present procedure as it was when the method of review was by writ of error. As to bills of exception, see Oliver v. Phelps, 21 N. J. Law, 597; Associates of Jersey Co. v. Davison, 29 N. J. Law, 415; and as to the application of the rule to assignments of error, see Fivey v. Penna. R. R. Co., 67 N. J. Law, 627, 636, 52 Atl. 472, 91 Am. St. Rep. 445; Defiance Fruit Co. v. Fox, 76 N. J. Law, 482-491, 70 Atl. 460.

2. The second ground of appeal is that the judge erred in charging that the plaintiffs had no right to substitute patented plaster for plaster provided for in the specifications. If we take the charge in its literal terms, the proposition is correct. The plaintiff had no such right. Hisi right was to make good his damage, if he had suffered any; but this was very far from a wholesale substitution of patented plaster for that put on in accordance with the specifications. If, however, we discard this literal construction, and take the charge as it was intended, and as the jury must have understood it, the judge only meant to say, as he immediately did say, that "the plaintiffs could not recover for the reasonable cost of the patented plaster"; that they could not adopt such a plaster (i. e., one "which had never been contemplated by the specifications"), and require the defendant to pay for it. He then charged the legal rule correctly as follows:

"If there was defective work with respect to the plastering performed by the contractor, the defendant in this case, the plaintiffs were entitled to have that replaced with the plaster under the terms of the specifications, in order to make the work good as contemplated by the original contract, and to be paid by the defendant, or to claim of the defendant, a reasonable sum for the expense so incurred."

3. The third ground of appeal is that the judge erred in charging that cracks are not inconsistent with a good and workmanlike job. This is a misstatement of the charge. What the judge said was:

"You may as men of common sense reach the conclusion under the evidence that those cracks were no evidence of defective work; in other words, that they were the ordinary and customary cracks that appear in a new construction, due to causes for which the contractor cannot...