Lunn v. Silfies
| Decision Date | 16 July 1980 |
| Citation | 106 Misc.2d 41,431 N.Y.S.2d 282 |
| Parties | Ralph E. LUNN and Richard E. Trezise, a co-partnership doing business under name and style of Lunn Lumber Company, Plaintiffs, v. Frank SILFIES and Antoinette Silfies, Defendants. |
| Court | New York Supreme Court |
In this action the plaintiffs sue to recover the balance allegedly due for services and materials furnished in effecting repairs to three rooms of the defendants' house in Olean, New York, described as the kitchen, pantry and backroom.
The plaintiffs contend that the total labor furnished was of the agreed and reasonable value of $3,246.93 and that the materials were of the agreed and reasonable value of $4,769.93. Of the total claim of $8,014.86 the plaintiffs admit receipt of payment from the defendants of $4,069.02. The balance of $3,945.84 constitutes the plaintiffs' claim of balance due.
There was no written contract as such. The parties proceeded from a written estimate which had been prepared by an employee of the plaintiffs. That employee had held himself out as having certain expertise in remodeling and repairing and in the preparation of estimates of labor and materials necessary to effectuate them. The defendants assert, without any particular dispute, that they relied upon the advice of the plaintiffs' employee concerning this written estimate and his intermittent inspection of the work while in progress.
The actual carpentry was performed by two experienced carpenters who were also employees of the plaintiffs.
The defense presented was that the repairs were not effected in a good and workmanlike manner.
There is rarely a trial calendar of a County or Supreme Court term for the disposition of civil litigation that does not contain a case similar to the one here for decision. Yet despite their frequency, these cases continue to present legal problems which generally are disproportionate to the amount involved. These problems arise frequently and particularly in the areas of legal concept and damages. Because the amounts involved are typically small, a majority of the cases are determined by compromise and only occasionally by jury verdict under court charges that have as many variances as there are judges who give the charges. (Note is made that the Pattern Jury Instructions have ignored the subject matter). There are few written decisions in this area of the law, either by trial courts or appellate courts.
Upon review, this court has reached certain conclusions. First, is that the law of New York recognizes that a person who undertakes to make repairs or build or construct has a certain duty relating to quality of the work undertaken, even in the absence of contract provisions. Secondly, while the duty is certain, there exists vast differences in concept as to the legal basis or origin of the duty.
In Gould v. Banks, 8 Wendall Reports, 562 (Ct. of Judicature 1832) it was stated that a duty to perform in a "skillful and workmanlike manner" was imposed by implication of law. In Lion Brewery of New York City v. Loughran, 131 Misc. 331, 226 N.Y.S. 656, 661, it was stated that implied conditions were "a creation of the courts in order to do justice and was invented in order to overcome the hardships of the strict enforcement of the letter of contract law." The decision was reversed in the Appellate Division, First Dept., without any statement as to origin of implied condition in contract, but with the statement that no condition expressed or implied that contradicts a written instrument can be proven because it would violate the parol evidence rule. (See 223 A.D. 623, 229 N.Y.S. 216). Recent vacillations of the Appellate Courts on a requirement to perform in a workmanlike manner seem to range from a duty borne out of (1) the concept of negligence in performance and (2) a breach of contract by non-performance of what was contracted to be done. See Trans Caribbean Airways Inc. v. Lockheed Aircraft Service International Inc., 14 A.D.2d 749, 220 N.Y.S.2d 485; Aegis Productions Inc. v. Arriflex Corporation of America, 25 A.D.2d 639, 268 N.Y.S.2d 185; Albermarle Theatre Inc. v. Bayberry Realty Corp., 27 A.D.2d 172, 277 N.Y.S.2d 505, Opn. by Witmer, J., (1st Dept., 1967) citing extensively from ...
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