William H. Curtin Manufacturing Co. v. Jaeckel

Majority

p. 99

William H. Curtin Manufacturing Company, Appellant, v. Ottilie Jaeckel and Others, Respondents.

Second Department,

November 23, 1910.

Headnote

Sale — material furnished for extra work' not covered by contract — failure to include items in original contract.

It is no defense to an action to recover for goods sold and delivered at the request of the defendant’s architect and in the' nature of extra work, that the architect did not make'provision for the goods in the original contract with the plaintiff, although directed to do so. . '

Appeal by the plaintiff, The William H.. Curtin Manufacturing Company, from a judgment of the Municipal Court of the city of Yew York, borough of Brooklyn, in favor of the defendants, rendered on the 3d day of June, 1910.

Philip Punting ton, for 'the appellant.

W. A. Fischer, for the. respondents.

This is an appeal from a- judgment dismissing the plaintiff’s complaint, in an action brought to recover for goods sold. The . plaintiff furnished some patent valves on the risers of a steam heating plant in the property of the defendants. As to this there is no dispute. The plaintiff furnished these goods on an order of. the ■

p. 100

architect employed by the defendants, and their reasonable valué was fifty dollars according to the proof. The defendants claim that while they directed the architect to order the installation of these goods, they thought this work was covered by another contract between them and the plaintiff for the installation of a general steam heating plant. The undisputed proof is that no provision was made for the installation of these valves in the original contract between the plaintiff and the defendants. Therefore, the work, if ordered by- the defendants, was extra work unquestionably. At the trial the defendants gave evidence tending to show that they had requested their architect to make provision for these valves in the original - contract; but as. no such provision was made in the original. contract, the defendants cannot defeat the right of the plaintiff to" recover for work and materials furnished by their order simply because their architect had omitted to follow out their wishes in the prepáration of his plans and specifications for work to be done under the original contract..

The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Hirsohberg, P. J., Woodward, Burr, Rich and Carr, JJ., concurred.

Judgment, of the Municipal Court reversed and new trial ordered, ’ costs to abide the event.. ■