McGrath v. Horgan

Latohlin, J.: This is an action to foreclose a mechanic’s lien on premises Hos. 226 and 228 West Seventy-eighth street, owned by the defendant Horgan, who was erecting thereon a double six-story and basement apartment house. On the 15th day of August, 1899, the plaintiff contracted in writing with the owner to do the plumbing and gas-fitting work and furnish the materials therefor for the gross sum of $4,200, payable in five installments as follows: Fvrst, when all cast iron sewer, soil and vent lines are in and brown mortar, $850; second, when gasfitting and water supply lines are in and white mortar, $800; third, when all lead roughing is done and job tested and water test passed and standing trim, $700; fourth, when half of fixtures are set and doors hung, $900; fifth, when all fixtures are set and job completed, $950 ; making total amount of contract $4,200. The time for the completion of the work was left blank. The contract, however, provided that if the contractor refused or neglected to supply sufficient material or workmen the owner might, on three days’ notice, declare the work abandoned, and complete it at the cost of the contractor. On the 7th day of April, 1900, the plaintiff abandoned the work upon the theory that the owner was in default in refusing to make the fourth payment. The plaintiff claims that he had performed all work and furnished all materials required by the contract as a condition precedent to the fourth payment, and that he thereafter demanded such payment, and upon the owner’s default abandoned the work. The owner claims that the plaintiff had not earned such payment at the time he abandoned the work, and the trial court has so found. The plaintiff gave evidence tending to show that he made a demand and that the owner was unable to pay but did not deny the plaintiff’s right to payment. The owner testified that no demand was made, and gave evidence tending to show that with reference to some of the items of work upon which it is now claimed that the plaintiff was in default, he had previously drawn the attention of the plaintiff thereto, who promised to complete or remedy the same. The trial court has either expressly or by necessary implication found these facts also in favor of the owner. The trial court has found on sufficient evidence that it cost the owner the sum of $1,433.54 to complete the contract, and that this [154] was the reasonable value of the work. It will be observed that this is nearly $500 in excess of the final payment, and is some indication that the fourth payment had not been earned. There was evidence tending to show, and I -think it. fairly preponderates in that direction, that the plaintiff failed to perform .many items of work and to furnish many items of material required by the contract before he was entitled to the fourth payment. He failed to complete the work of furnishing and connecting fourteen lines of vent pipes to extend beyond the roof, work required before he was entitled to the first payment, and it cost the owner seventy-six dollars to complete this work. The contract required the plaintiff to furnish and set eighty-nine fixtures. • Forty-seven of these were upon the premises on the seventh of April, but according to the evidence adduced by respondent those on the third floor were not set, and it appears that many items in connection with the fixtures that were set had not been either supplied or. attached, viz., the rubber aprons and shampoo connections were wanting ; the gas logs were not connected ; pipes were not painted; covers to tubs ■were not screwed on ; waste pipes and strainers were not supplied, ■and other similar items of work and materials were not performed or furnished, and there were other items for defective work and damages done, and not remedied, by plaintiff’s workmen. The plaintiff contends that the items of material and work omitted 'were of such a character that they could have been furnished as well at the completion of the contract, but, conceding this; the plaintiff was required to put the defendant in default before he was at liberty to abandon the contract, and this, he could not do with 'respect to the fourth payment without showing that he had discharged one-half of his obligation in respect to- furnishing and setting fixtures. In this we think he failed. It appears that-it cost $166 to complete the work which the plaintiff claimed to have done and $191.12 in addition thereto to remedy defects therein. The plaintiff should have remedied these defects, supplied these omissions, and then, if the owner refused to make the payment, he might with propriety have abandoned the work. Where a contractor, acting in good faith, removes his men and tools believing that he has fully completed his contract* but in fact slight omissions are found which, may be readily supplied or reme [155] died, the liberal and just rule of substantial performance obtains in equity and he may recover, a proper reduction from the contract price being made to indemnify the owner. Even if this rule were •to be applied in the case at bar we think the plaintiff could not recover the fourth payment upon the ground of" substantial performance ; but we are of opinion that the rule should not be applied with the same liberality in a case where, as here, the contractor deliberately abandons the work without any pretense of having fully completed his contract and solely on account of the failure of the owner to pay an installment intermediate the commencement and completion of the work. If the liberal rule of substantial performance is to prevail in such cases, then upon such abandonment it would require an appraisal of the damages to be deducted by. the owner, and this would necessarily delay the work. It is one thing to lay-down a liberal rule to prevent an owner from reaping the benefit of the services of a contractor who, acting in good faith, leaves the premises on the supposition that his work has been fully completed, and it is quite another to announce a doctrine not required by any rule of equity, which will lead to endless confusion, delay and litigation in the execution of building contracts. The summary abandonment of an incomplete contract is likely to prejudice not only the owner, but the rights of other contractors and their employees as well. When a contractor picks up his tools and orders his men to quit work on the ground of a breach of contract on the part of the owner in failing to make an intermediate installment payment, he should be prepared to show full performance of all conditions precedent to his right to such payment. The plaintiff refused to proceed with the execution of his contract, and elected to stand upon his strict legal rights. He must, therefore, in order to recover, bring himself fairly within the terms of the contract by showing performance of the obligations he incurred “ without any omission so substantial in its character as to call for an allowance of damages.” ( Van Clief v. Van Vechten, 130 N. Y. 571; Brainard v. County of Kings, 155 id. 538.) We think that both in law and in equity the owner was justified in withholding the fourth payment even-if a demand therefor was made. The owner, however, having in accordance with the terms of the agreement completed the contract work, the plaintiff would ordi [156] narily be entitled in equity to recover and enforce his lien for the "difference between the cost of completion and the balance unpaid on the contract. (Edison El. Co. v. Guastavino Co., No. 2,16 App. Div. 358.) In the present case the only provision in the contract bearing on the question of damages is that which authorizes the owner, in case the contractor, shall default, to'finish the work and deduct the cost from the contract price. But the plaintiff was guilty of total breach of the contract in deliberately abandoning the work, and this provision should not be construed as precluding the owner from recovering his general damages. (Murphy v. Buckman, 66 N. Y. 297; McCready v. Lindenborn, 63 App. Div. 106.) The measure of his damages is compensation for the loss reasonably and proximately resulting from the breach of the contract. (Hecla Powder Co., v. Sigua Iron Co., 157 N. Y. 437; Friedland v. Myers, 139 id. 432; Booth v. Spuyten Duyvil Rolling Mill Co., 60 id. 487; Baker v. Drake, 53 id. 211; Wakeman v. Wheeler & Wilson Mfg Co., 101 id. 205.) It is claimed that, owing to the breach of contract on the part of plaintiff, the owner was delayed one month in the completion of the building, and he has shown that the fair rental value of the building was $1,000 per month, and has been allowed that amount by the court in adjusting the claims of the respective parties. "We think that the owner failed to show satisfactorily that the breach of the contract on the- part of the plaintiff either necessarily or reasonably delayed the work for the period of one month and, therefore, he has not established that such breach was the proximate cause of the loss of rentals for so long a period. The recovery in this regard has been allowed on the theory that the rules of the Master Plumbers’ Association, of which plaintiff was a member, would not permit other members to take up the contract until after an investigation by its executive committee for the purpose of ascertaining whether the owner was at fault in refusing to pay the Contractor,.and that this committee did not decide the matter until the thirtieth day of June. It does not appear that so long a time was essential to a decision of the question or that the parties could have contemplated a delay of such great length ; nor does it appear that the respondent made any effort either to engage, other plumbers, not members of the association, to complete the work of to . obtain more prompt ■ action on the part of said committee. [157] Furthermore, the evidence is far from conclusive that the building would have been completed earlier had it not been for the delay on the plumbing contract. For these reasons that part of the judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event. Yah Brunt, P. J., and McLaughlin, J., concurred; Patterson, J., concurred in result; O’Brien, J., dissented.