Flaherty v. Miner

• Decision Date: 28 October 1890
• Citation: 123 N.Y. 382,25 N.E. 418
• Parties: FLAHERTY v. MINER et al..
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 382

25 N.E. 418

FLAHERTY

v.MINER et al..

Court of Appeals of New York.

Oct. 28, 1890.

Appeal from common pleas of New York city and county, general term.

James M. Smith, for appellants.

Henry Schmitt, for respondent.

EARL, J.

In June, 1881, the plaintiff entered into a written contract with the defendants to excavate and remove the earth and boulders from certain lots in the city of New York, upon which they were to erect a building. It was provided in the contract that they should pay him $3,500 for the work, in payments as it progressed. It was also provided that, before he could demand any payment, he should obtain the certificate of the architect employed by them. He entered upon the execution of the contract, and, during the progress of the work, received from them $900. After their refusal to pay him the balance of the contract price, he brought this action to recover the same. He alleged in his complaint that all the portions of the contract relating to the certificate of the architect were inserted therein by mistake; and, besides other relief, he prayed that the contract should be reformed by striking therefrom so much as related to the architect's certificates. The answer put in issue all the material allegations of the complaint, and the plaintiff noticed the action for trial at a special terms as an equity action. At that term the defendants appeared, and, claiming a jury trial, moved that the case be stricken from the special-term calendar; and, upon their stipulation that it might be tried at a circuit before a jury with the same effect as if tried at an equity term of the court as to the reformation of the contract, the court ordered the case to be stricken from the calendar; and it was thereafter moved for trial at a circuit court, and, at the commencement of the trial, plaintiff's counsel handed to the court the stipulation just referred to. Thereupon the defendant's counsel stated as follows: ‘That he claimed in this action that the issues in the case were triable by jury, and he claimed such trial; that there was no necessity for any reformation of the contract, and no claim was made by the defendant that the plaintiff was to erect a building which cost between $50,000 and $60,000, while this contract was for but $3,500; that the defendant makes no claim that the plaintiff was to do anything other that the excavating, digging, removing of all earth, boulder, and other matter, and leave sand for completion of work on the premises, 312 and 314 Eighth avenue, for the sum of $3,500, payments to be made as the work progressed; that the contract did not include underpinning of adjoining premises, and rocks were to be removed by other parties.’ The court then directed that the trial should proceed before the jury. Upon the trial, the plaintiff offered evidence bearing upon the issue as to the reformation of the contract, and the defendant's counsel objected to such evidence; and, upon his objection, it was excluded, and no evidence was received bearing upon that issue. The trial proceeded, and it was undisputed that the plaintiff had been paid only $900, and the jury awarded him a verdict for $2,000, besides interest. Judgment upon the verdict having been affirmed, the defendants have brought this appeal, and they now claim, among other things, that the plaintiff was not entitled to payment without the production to them of the architect's certificate, as required in the contract as originally drawn. We think the counsel for the plaintiff is right in his claim that that portion of the contract requiring the production of the certificates must be deemed to have been stricken from the contract, and thus that the contract was reformed in reference thereto. We think that is the plain purport and effect of the stipulation given at the commencement of the trial, and that it was so understood by the defendants' counsel when, upon his objection, all the evidence offered on the part of the plaintiff upon the issue as to the reformation of the contract was excluded by the court. After what took place upon the trial, it would be extremely unjust now to hold that the plaintiff was bound by so much of the contract as he claimed was inserted by mistake; and the case should now be treated as if the contract had been reformed as prayed in the complaint. Thus the only issue to be tried at the circuit was whether the plaintiff had performed his contract. Upon that issue, the plaintiff gave evidence tending to show that he had performed his contract, and that the defendants promised to pay him the balance of the contract price. The defendants gave evidence tending to show that he had not performed his contract, and that they had been obliged to expend considerable sums of money to complete the work which he had contracted to do; and the trial judge charged the jury that, if he had not substantially performed his contract, he could not recover the balance of the contract price, but that if he had substantially performed the...