Mascioni v. I.B. Miller, Inc.
| Decision Date | 10 January 1933 |
| Citation | 184 N.E. 473,261 N.Y. 1 |
| Parties | MASCIONI et al. v. I. B. MILLER, Inc. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by John Mascioni and another, copartners doing business as Mascioni & Bariatti, against I. B. Miller, Inc. From a judgment of the Appellate Division, Second Department (236 App. Div. 688, 257 N. Y. S. 1001), reversing as matter of law a judgment of the Trial Term dismissing the complaint, and directing judgment for the plaintiff, the defendant appeals.
Judgment of the Appellate Division reversed, and judgment of the Special Term affirmed.
Appeal from Supreme Court, Appellate Division, Second department.
Louis Rosenberg, of New York City, for appellant.
William Hyman, of New York City, Bernard Segall, of Jamaica, L. I., and Warren J. Heeg, of Richmond Hill, for respondent.
The plaintiffs and the defendant entered into a written contract whereby the plaintiffs, described in the contract as the ‘Sub-Contractor,’ agreed to provide all the materials and all the work for the erection of concrete walls, and the defendant, described in the contract as the ‘Contractor,’ agreed to pay therefor the sum of 55 cents per cubic foot. The concrete walls were to be erected as ‘specified in a certain contract between the Contractor and Village Apartments, Inc., described therein as Owner,’ and the defendant's promise to pay contained the proviso, ‘Payments to be made as received from the Owner.’ In spite of the fact that the owner has made no payments to the defendant for the work and materials, or any part thereof, performed and furnished by the plaintiffs, the plaintiffs have recovered a judgment against the defendant for the agreed price.
The problem presented on this appeal is whether the defendant assumed an absolute obligation to pay, though for convenience payment might be postponed till moneys were received from the owner, or whether the defendant's obligation to pay arose only if and when the owner made payment to the defendant. At the trial, the plaintiffs, claiming that the contract was ambiguous, were permitted to introduce testimony to show that, before the written contract was signed, much of the work had been performed under an oral contract by which the defendant assumed an absolute obligation to pay; and the defendant, though claiming that the written contract, in unambiguous terms, annexed a contingency to the defendant's obligation to pay, produced parol testimony to show that the plaintiffs expressly assumed the risk that they might never be paid. A judgment in favor of the defendant was reversed by the Appellate Division on the ground that the contract is unambiguous and that the provision with respect to payment ‘merely fixed the time of payment and did not create a condition precedent.’ 236 App. Div. 688, 257 N. Y. S. 1001.
A provision for the payment of an obligation upon the happening of an event does not become absolute until the happening of the event. Whether the defendant's express promise to pay is construed as a promise to pay ‘if’ payment is made by the owner or ‘when’ such payment is made, ‘the result must be the same; since, if the event does not befall, or a time coincident with the happening of the event does not arrive, in neither case may performance be exacted.’ Amies v. Wesnofske, 255 N. Y. 156, 162, 174 N. E. 436, 438, 73 A. L. R. 918.
True, a debt with consequent obligation to pay may exist aside from any express promise to pay. Then a condition annexed to an express promise to pay the debt may render the promise to pay conditional without making the debt subject to the some condition. ...
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