Gillen v. Hubbard

The defendant agreed that if the contractor should, at any time during the progress of the work to be done under the contract, refuse or .neglect to supply a sufficiency of materials or workmen, that he should have the power to provide the materials and workmen after “ three days’ notice in writing being given to finish the work,” and that the expense would be deducted from the amount of the contract. And the defendant, acting upon this part of the contract, and after the alleged abandonment of the work by the contractors, notified them that they were required to supply the requisite materials and workmen for the completion of the contract, and that in default thereof he would supply the same, and deduct the expense thereof from the contract price. The penalty for a failure or refusal to supply materials and workmen appears to have been determined by the contract, and to have been understood and acted upon by the defendant. If the contract had been silent upon the subject, there would be no difficulty in relieving the defendant from any of his alleged grievances, because, the contractors having failed to perform their contract, the plaintiff, as *309a lienor, could not recover. Neville v. Frost, 2 E. D. Smith, 62; Cunningham v. Jones, 3 E. D. Smith, 650; Smith v. Brady, 17 New York Rep. 172.

It seems, from the testimony in this case, that the principal-omissions of the contractors were the painting, and the construction of one cedar closet;' and by the terms of the contract the penalty for such omissions was regulated. If one cedar closet was omitted, the sum of one hundred dollars was to be deducted from the amount of the contract; and if the painting was omitted, the sum of four hundred dollars was to be deducted in like manner. It may be said, with propriety, in reference, to this part of the contract, that it gave to the contractors, if they thought proper so to do, the right to omit one cedar closet and the painting, and thus qualified the engagement to finish the building according to the plans and specifications of which these things were a part. But whether that be so or not, "the defendant cannot claim for those items more than he has agreed to accept, and cannot ask more than a reduction of the amounts agreed upon for these omissions. In determining the obligation of the contractors, the whole contract must be considered; and thus considered, it is an agreement to erect and furnish all the carpenter’s work of a dwelling house on or before the 1st of April following its date, with a proviso that if the contractors should refuse or neglect to supply a sufficiency of materials or workmen, the defendant should have the power, on a notice of three days, to finish the work and deduct the expense from the amount of the contract. And with a further proviso, that if one closet were omitted, and the painting omitted, a deduction of five hundred dollars, could be made by the defendant in the manner before stated. These features of the agreement gave the defendant the means of preventing any unnecessary delay in the performance of the work contemplated, and the power of substituting himself for the contractors upon the happening of the contingencies expressed. Doubtless he might have disregarded the power thus conferred, and have rested upon his right to have the work performed at the time agreed upon; but he did not adopt that *310course, and, having acted upon the contract, must abide by the consequences. The omission of the contractors to furnish the certificate of the architect, required by the contract, is answered by the fact that the defendant undertook to finish the work for the contractors, who, not having done it, were not entitled to the certificate. The contractors would not be entitled to the certificate if the painting was omitted, although the deduction for such omission agreed upon was a qualification of the contract as to the parties themselves. It was not so as to the architect. His certificate depended upon the contractors’ performance. The ninth payment was to be made when the work was completely finished according to the plan and specifications, provided the certificate of the architect was obtained. When the defendant undertook to do- the work, as already mentioned, the architect’s certificate was not only unnecessary in fact, but as a matter of form. The relation of the parties was changed, and the defendant became the contractor pro hcec vice. This view of the case disposes of the objections made to the right to recover, and leaves to be considered the state of the accounts between the contractors and the defendant. The contractors were entitled to the sum of $950, and $76 for extra work, making, in all, $1,026. The defendant was entitled to $500 for the omission of one cedar closet and the painting, $160.56 for glass put in, and $58 for the cost of completing tin roof and a difference in the skylight, making, in all, $718.56, which, deducted from $1,026, would leave a balance of $307.44 due to the contractors. The defendant, however, insists that he is also entitled to a deduction of at least $416 for rent of the premises from the 13th October to 1st January, 1856, when the premises were finished. This claim is based upon the agreement of the contractors to finish their work on the 1st April and the value of - the house per annum, estimated at $2,000 as a rental.

The referee finds that the rent of the house was $2,000 per annum, but does not find that the defendant sustained any damages by reason of the contractors’ failure to finish the premises on 1st April. Indeed there is no finding on that subject. The de*311fendant did not set up such damages in his answer, although he gave proof of the rental without objection; yet, so far as the referee’s report is concerned, the parties have treated the matter as of little importance. The defendant has only excepted to that part of the referee’s report whereby he finds, as conclusions of fact, that the defendant was indebted to the contractors in the sum of $200, and that the plaintiff has acquired a lien for the sum of $199. The exceptions are to conclusions of law, and not to the findings of fact; and the defendant has failed to present the case in such manner that we can reverse the judgment on the ground suggested; and, as the referee has allowed the defendant all his expenses, the judgment will be affirmed.

Judgment affirmed.