Clark v. Collier

Vanclief, C. Action to recover a balance of $825 alleged to be due and owing from defendant to plaintiff on a written building contract; and also $50 for extra work. The cause was tried by the court. The judgment was in favor of the defendant. The plaintiff has appealed from the judgment and from an order denying his motion for a new trial. By the contract the plaintiff agreed to repair an old house and to build a new addition thereto to be attached to it. The old house was to be turned partly round, removed from its old foundation, and placed on a new brick foundation, to be laid by plaintiff under both the old house and the new addition. The plans and specifications of the work to be done upon both the old and the new parts, to which the contract referred, are ordinarily minute. The defendant agreed to pay for the whole work $1,325, by installments as follows: “Old part placed in position, $200; foundation in and frame up, $300; inclosed and roof on, chimneys up, and the building completed according to agreement and specifications, $300. Balance to be paid on completion of [258] work, if not otherwise agreed upon by both parties hereto.” As the work progressed the first two installments were paid; hut before further payment was made the whole house (old and new parts) was consumed by fire, without apparent fault of either party. 1. It is not contended that the plaintiff is entitled to recover either the third or last installment, unless the conditions stated in the agreement, upon which the third installment was to be paid, had been performed by plaintiff before^ the fire. But counsel for appellant contend that these conditions refer only to the new building; they say, “the old house was not to be inclosed, nor any roof put on, nor any chimneys put up.” Conceding this, it is not perceived that the effect would be as claimed by counsel, even if, as they contend, the old house was substantially completed before the fire; since no reason appears why the payment of installments may not have been conditioned upon work on the new part. But counsel are mistaken in regard to chimneys. A chimney was to be, built in'the old part. The contract specifies: “Old house to be moved and turned side to Taylor avenue; chimneys to be taken down and new one built, with wood fireplace, where shown on plan.” Besides, plaintiff testified that he understood “the terms ‘ building completed according to agreement and specifications/ to refer to the old house.” The contract is an entirety. There is nothing in it by which the price to be paid for any of the work or materials can be distinguished from that to be paid for any other part. The word “building,” in the condition upon which the third itistallment was to be paid, comprehends the new part, as clearly indicated by the condition of the first payment—“old part placed in position”—not old building placed in position. I think the trial court correctly construed the contract in this respect. 2. It is contended, however, that both parts of the building were substantially completed before the fire. [259] But without conflict the evidence shows that no part of the second coat of paint upon the new part, required by the contract, had been put on; that the work-bench of the carpenters and the paint for the second coat were in the new part at the time of the fire; that two of the doors were not hung, no lock nor fastenings on the front door, and no fastenings on the windows; and that the house had not been delivered to defendant. The plaintiff testified, however, that two days before the fire he had told defendant’s wife that the old part of the house was finished, and that she might move into it; but this was contradicted by Mrs. Collier. The court found that plaintiff had never finished, completed, nor delivered the house, and that defendant had never accepted it; and I think the evidence sufficient to justify this finding. 3. Upon the count for extra work the court found for the defendant. As to all the items of this count the evidence was substantially conflicting, except as to one door-lock of the value of fifty cents, which, as compared with the sum in contest, may be considered as de minimis. I think the judgment and order should be affirmed. Temple, C., and Searls, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. McFarland, J., De Haven, J., Fitzgerald, J.