Jones v. Whittier

• Decision Date: 02 July 1909
• Parties: JONES v. WHITTIER.
• Court: New Jersey Supreme Court

73 A. 497

77 N.J.L. 715

JONES

v. WHITTIER.

Court of Errors and Appeals of New Jersey.

July 2, 1909.

(Syllabus by the Court.)

Error to Circuit Court, Bergen County.

Action by Oscar E. Jones against John W. Whittier. Judgment for plaintiff, and defendant brings error. Affirmed.

Luther Shafer, for plaintiff in error.

John M. Bell, for defendant in error.

PARKER, J. This is an action on mechanic's lien, brought by the contractor against the owner. The building contract was in writing, and provided for payment of the contract price in installments as the work progressed. The provisions of the contract that are material to the present inquiry are those relating to the third and fourth payments, viz.: "Third. When house is inclosed, except window and door openings and porch floor, $1,300. Fourth. When wall board and patent wall plaster is on, $1,200."

There was also a provision that the contractor should buy certain materials from the owner, and that the cost of the same should be credited on the contract price. It was conceded that the third payment was earned and made. The contractor claimed the fourth payment as due, and the owner refused to make it, on the ground that the work excepted in the third payment, the window and door openings and porch floor, formed part of the requirements for the fourth payment, and must be done before that payment would become due. It was conceded, or fully proved, that the wall board and patent plaster were on, thus complying with the express requirements of the fourth payment. It was also admitted that the porches and windows and door openings had not been completed. Upon the owner's refusal to pay, the contractor abandoned the work, and brought suit for the fourth payment, less credits for lumber purchased. The case was tried on the theory that if the work had progressed sufficiently to call for the fourth payment, plaintiff was entitled to recover. The assignments of error bring up the refusal of the court to nonsuit and to direct a verdict, the exclusion of certain evidence as to the customs of builders, and certain language in the charge to the jury.

Under the assignments of error relating to the exclusion of evidence offered by defendant, the complaint is that defendant was prevented, by rulings of the court, from showing that, according to the usual and orderly method of constructing such a building as that in question in this case, the wall board and patent plaster should not be put on until the doors and windows were in, or at all events until the window and door openings excepted from the third payment had been constructed. Without passing on the question whether such evidence was competent and relevant to the...