Wilson v. Borden

• Decision Date: 02 March 1903
• Citation: 68 N.J.L. 627,54 A. 815
• Parties: WILSON v. BORDEN.
• Court: New Jersey Supreme Court

54 A. 815

68 N.J.L. 627

WILSON

v. BORDEN.

Court of Errors and Appeals of New Jersey.

March 2, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Monmouth County.

Action by Wayman Wilson against Matthew C. D. Borden. Judgment for plaintiff, and defendant brings error. Reversed.

John S. Applegate & Son, for plaintiff in error.

James S. Legnan, for defendant in error.

VAN SYCKEL, J. This is a suit on a building contract, by contractor against owner, to recover for work done under the contract, dated April 23, 1901. The plaintiff alleged that the owner unlawfully rescinded the contract, and he was permitted by the trial court to recover the cost of the work he had done, and materials furnished.

The first question in the case is whether the owner was justified in putting an end to the contract.

Section 13 of the contract provides "that if the architect shall certify that the refusal, neglect or failure of the contractor to comply with the contract is sufficient ground for such action, the owner may terminate the employment of the contractor." On the 27th of August, 1901, the architects sent to Borden a letter, of which the following is a copy:

"August 27, 1901. Dear Mr. Borden: We have your favor of the 20th lust, in relation to the progress of work on the Blelman Cottage.

"We feel as you do about this matter, that the present progress is absolutely unsatisfactory, and that under existing conditions it is utterly impossible to prophesy the date of completion. We have urged the contractor on every possible occasion and have instructed him in many ways that with an ordinary contractor would be quite unnecessary, but he exhibits so little capacity for carrying on the work that we are quite discouraged about it, and we are therefore very willing to take any action in the matter which you may suggest.

"The present stage of the work is perhaps the most unsatisfactory of all, as the plastering work which is now being carried on prevents the progress of the woodwork on the interior, and this of course cannot be avoided.

"if you deem it advisable, we will forward to the contractor the formal notice to discontinue work which you have already sent to us for the purpose. We have no means of inducing the contractor to put more energy into the work, nor can we supply his deficiency in this particular. We have exhausted every resource in our efforts to have him hurry the work.

"We await your instructions in the matter.

"Yours truly, Cavere & Hastings."

After receiving this letter the defendant, on the 7th of September, 1901, caused the notice referred to in the letter of the architects to be served on the plaintiff; having first changed its date to September 7, 1901. The said notice was as follows:

"Wayman Wilson, Esq.—Sir: in accordance with the terms of section 13 of my contract with you for work on the house formerly owned by Max Blelman of Oceanic, N. J., I hereby give you notice that your failure to proceed with the work compels me to avail myself of my privilege under said contract to have the work finished by some other person.

"Oceanic, 7th Sept. 1901.

"M. C. D. Borden."

An implication may be drawn from the letter of the architects that in their judgment the owner had a right to rescind, but the contractor should not be deprived of his contract by implication when there is an express provision in the contract that...