Vanderbeek v. Tierney-Connelly Const. Co.

• Decision Date: 14 June 1909
• Citation: 77 N.J.L. 664,73 A. 480
• Parties: VANDERBEEK et al. v. TIERNEY-CONNELLY CONST. CO. et al.
• Court: New Jersey Supreme Court

73 A. 480

77 N.J.L. 664

VANDERBEEK et al.

v. TIERNEY-CONNELLY CONST. CO. et al.

Court of Errors and Appeals of New Jersey.

June 14, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Isaac P. Vanderbeek and others against the Tierney-Connelly Construction Company and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Walter L. McDermott, for plaintiffs in error.

Pierre F. Cook and Collins & Corbin, for defendants in error.

GARRISON, J. The Tierney-Connelly Construction Company (which we shall call the "construction company"), having a contract with the board of chosen freeholders of Hudson county for the construction of the almshouse at Snake Hill, agreed to purchase of Vanderbeek & Sons certain required materials, and, in order to secure the payment of the purchase price, executed and delivered to them a bond with the defendants Connelly and Ross as sureties, the condition of which was as follows:

Whereas, the said the Tierney & Connelly Construction Company has agreed to purchase from the said Isaac P. Vanderbeek, Stuart M. Vanderbeek and S. Henry Baldwin, partners as aforesaid, certain materials more specifically mentioned and described in the schedule hereto annexed for the sum or price of eight thousand three hundred and fifty-five dollars and fifty-seven cents, and the said Isaac P. Vanderbeek, Stuart M. Vanderbeek and S. Henry Baldwin, partners as aforesaid, have agreed to sell and deliver to the said the Tierney & Connelly Construction Company at the new county almshouse at Snake Hill in the county of Hudson aforesaid, said materials for the price aforesaid, the window frames therein included to be delivered within twenty days from the date hereof; the sash therein included to be delivered on or about June 1, 1906, if required, and the remainder of said materials, including such sash as shall not be required by said company before June 1, 1906, to be delivered after June 1, 1906, or before said last mentioned date if required by said company; proportionate payments for said materials to be made within sixty days after each delivery thereof.

"Now the condition of the above obligation is such that if the above bounden the Tierney & Connelly Construction Company, its successors or assigns, shall and do well and truly pay or cause to be paid unto the said Isaac P. Vanderbeek, Stuart M. Vanderbeek and S. Henry Baldwin, partners as aforesaid, the survivors or survivor of them, or to their executors, administrators or assigns, the full and just sum of eight thousand three hundred and fifty-five dollars and fifty-seven cents at the times and in the manner aforesaid, then this obligation to be void, otherwise to remain in full force and virtue."

The schedule annexed contains as one of its items "405 set Tabor sash fixtures, attached," which in the written proposal on which the contract of sale was based was estimated at $1,012.50.

This item is the main ground of substantial dispute between the parties to the present litigation, which was instituted by Vanderbeek & Sons bringing suit on the bond for $3,094.69, which they claimed to be the balance due thereon, whereas the plaintiffs in error claimed that such sum, although unpaid, was a reduction to which they were entitled by reason of the failure of Vanderbeek & Sons to furnish the Tabor sash fixtures attached and the consequent cost to the construction company in obtaining such fixtures directly from the Tabor Sash Company. The sureties also claimed that, by reason of the premises, they were discharged in law.

The matter thus in dispute arose in this way: The glazed sashes that Vanderbeek & Sons agreed to deliver to the construction company with Tabor sash fixtures attached had to have such fixtures attached by the Tabor people before the sashes were glazed. For this purpose, they were sent by Vanderbeek & Sons to the Tabor people who because they themselves had a large contract with the construction company for other materials and fixtures...