Feeney v. Bardsley
| Decision Date | 17 June 1901 |
| Citation | 49 A. 443,66 N.J.L. 239 |
| Parties | FEENEY v. BARDSLEY. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to supreme court.
Action by Owen Feeney against Joseph Bardsley. Judgment for plaintiff. Defendant brings error. Reversed.
Charles D. Thompson, for plaintiff in error.
James M. Trimble, for defendant in error.
VAN SYCKEL, J. This suit was brought by Feeney, the defendant in error, to recover the balance alleged to be due to him upon a building contract The plaintiff in error relies for reversal upon alleged errors in the charge of the trial court. The trial judge charged that, if the contractor did not substantially comply with the contract, he could not recover. He told the jury that, if a builder contracts to erect a two story and a half house, and he erects only a one story and a half house, he cannot recover, although he has added value to the owner's property. But, if the contractor has substantially performed his contract, even though he has failed to do so in some minor particulars, he is entitled to recover the contract price, less what will be a fair allowance to the owner to make good the defects in the performance of the contract. The court further charged that, if there was not a substantial compliance with the contract, the jury could find a verdict for the contractor for what the building was reasonably worth, if the owner had accepted the house; but that in determining the question of acceptance it was not sufficient to find that the owner was occupying it. It is a house built upon his land, and, unless he tears it down, he must make some use of it, so that the jury must find some positive act on his part showing an intention to accept it. This instruction to the jury is strictly in accordance with the views expressed by Mr. Justice Magie in the supreme court in Bozarth v. Dudley, 44 N. J. Law, 304, 43 Am. Rep. 373. Since the publication of that decision it has been applied in the trial of similar issues, and it has been cited with approbation in this court in Mackinson v. Conlon, 55 N. J. Law, 506, 27 Atl. 930. In this respect there is no error in the charge of the trial court.
The written contract provides that the contractor shall wholly finish his work on or before January 1, 1897, and in default thereof the contractor shall pay to the owner five dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages. The contract further provides that,...
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...contract.' " 42 N.J.Super. at 337, 126 A.2d 372 (quoting 9 Am.Jur., Building and Construction Contracts § 42). In Feeney v. Bardsley, 66 N.J.L. 239, 49 A. 443 (E. & A. 1901), the Court found no error in the lower court's charge to the jury where it [I]f the contractor has substantially perf......
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...an extension. The presentation of such claim is a condition precedent to the right of the contractor to claim such extension. Feeney v. Bardsley, 66 N.J.L. 239; Curry v. Olmstead, 26 R. I. 462; Wagner Co. Cawker, 112 Wis. 532; O'Keefe v. St. Francis Church, 59 Conn. 561. (8) The parties hav......
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...right to payment will be defeated if the proofs do not show a substantial performance, is stated in the case of Feeney v. Bardsley, 66 N.J.L. 239, 49 A. 443 (E. & A.1901). Therein, Mr. Justice Van Syckel, speaking for the court, 66 N.J.L. at page 240, 49 A. at page 443, held that the follow......
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...a fair allowance to the owner for minor defects or omissions. Bozarth v. Dudley, 44 N.J.L. 304, 310 (Sup.Ct.1882); Feeney v. Bardsley, 66 N.J.L. 239, 49 A. 443 (E. & A.1901); Van Dusen Aircraft Supplies, Inc., v. Terminal Const. Corp., 3 N.J. 321, 70 A.2d 65 (1949); R. Krevolin & Co., Inc.,......