Sheyer v. Pinkerton Constr. Co.

• Decision Date: 14 November 1904
• Citation: 59 A. 462
• Parties: SHEYER et al. v. PINKERTON CONSTRUCTION CO.
• Court: New Jersey Supreme Court

59 A. 462

SHEYER et al.

v. PINKERTON CONSTRUCTION CO.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1904.

Error to Circuit Court, Atlantic County.

Action by the Pinkerton Construction Company against David H. Sheyer and others. There was judgment for plaintiff, and defendants bring error. Reversed.

Thompson & Cole, for plaintiffs in error.

William J. Garrison and John J. Crandall, for defendant in error.

REED, J. This is an action upon a mechanic's lien. It was brought by the Pinkerton Construction Company, as subcontractor, against Sheyer, as builder, and Christ's Methodist Episcopal Church, as owner. It is brought to recover the unpaid portion of the contract price of $8,885 and the value of certain extra work. The record before us does not show that the contract itself was formally offered in evidence, but as a part of the plaintiff's claim springs out of the contract, and as the contract is repeatedly referred to and quoted from by counsel and by the court throughout the trial, and as the whole case was tried by both sides upon the assumption of the existence of a contract, it is to be regarded as in the case. Respecting the liability of the defendants for the unpaid portion of the contract price, namely, $8,885, there was no contest The points litigated respected certain extras, one item of which was for $93.72, the extra cost of an alteration in the plans by which the steps leading from the street into the church were changed. Another item was for furnishing a stone for a chimney top, which the defendants were bound to furnish. Still another item was for 163 days' work, for margins cut upon the jambs and cornices, and for dressing heads. The contract contains the following clause: "All payments shall be made upon written certificates of the engineer to the effect that such payments have become due." This clause obviously applies to payment for all the work done. There was no certificate given, nor, indeed, was there any application to the engineer for a certificate. The trial judge was asked to charge that for this reason there could be no recovery. This was refused, the court charging that, "if a certificate could not be furnished through the obstinacy, or whatever it may be, of the one person that could furnish it that cannot obstruct the administration of justice." Again, the court was requested to charge that there could be no recovery without the engineer's certificate unless the plaintiff convinced the jury by affirmative proof that the...