Sullivan v. Moffatt

• Citation: 56 A. 304,70 N.J.L. 4
• Parties: SULLIVAN v. MOFFATT et al.
• Decision Date: 27 November 1903
• Court: New Jersey Supreme Court

56 A. 304

70 N.J.L. 4

SULLIVAN

v. MOFFATT et al.

Supreme Court of New Jersey.

Nov. 27, 1903.

Action by John J. Sullivan against Alexander Moffatt and others. On rule to show cause why a verdict in favor of plaintiff should not be set aside. Rule made absolute.

Argued at June term, 1903, before GUMMERE. C. J., and DLXON, HENDRICKSON, and PITNEY, JJ.

Lindley M. Garrison, for plaintiff.

De Witt Van Buskirk and Charles L. Corbin, for defendants.

GUMMERE, C. J. This suit was brought by the plaintiff on a subcontract made with the defendants to supply marble and set the same in the new banking house of the Mechanics' Trust Company of Bayonne; the defendants having a contract with the Trust Company to do all the work upon the building. The subcontract was dated April 12, 1901, and by its terms the work under it was to be completed by the plaintiff on the loth day of July of the same year. It was not completed within the time limit. Whether the failure was due to the fault of the plaintiff or of the defendants, or of both, is disputed. The plaintiff, with the acquiescence of the defendants, proceeded with the work up to the 12th day of September, 1901, when the defendants, against his protest, took it out of his hands, and subsequently carried it to completion themselves. The plaintiff claims that the action of the defendants was without legal Justification, and sues to recover the money loss sustained by him by reason thereof. The defendants claim that they were acting strictly within the rights reserved to them by section 5 of the contract, in terminating the plaintiff's employment, and taking charge of the work themselves. That section is as follows: "Should the party of the first part [the plaintiff] at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified by the architect, the party of the second part [the defendants] shall be at liberty, after two (2) days' written notice to the party of the first part, to provide any such labor or materials, and to deduct the costs thereof from any money then due or thereafter to become due to the party of the first part under this contract; and if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the party of the second part shall also be at liberty to terminate the em ployment of the party of the first part for the said work, and to enter upon the premises and take possession, for the purpose of completing the work comprehended under this contract, of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the party of the first part, then the said party of the...