Close v. Clark

This action was brought for the foreclosure of a mechanic’s lien. The complaint, among other-things, alleged that plaintiffs “did and performed certain work, labor and services, and furnished necessary materials therefor, which work and materials consisted of building and erecting on the premises above described a house or building according to the terms and conditions of the said contract.”

We think the learned referee erred in his findings as to what the contract .referred to in the complaint actually was. This agreement was in writing, and was executed in duplicate. The copies correspond, except that after the signatures in the one retained by defendants and produced by them at the trial was added the following: “P. S. The whole building to be finished on or before the 1st day of January, 1888, A.D.” We think the weight of evidence is strongly in favor of the view that this, postscript was added, after the signing doubtless, but still, upon the same occasion, and in the presence and with the consent of all the parties. Such postscript being orally assented to, was, therefore, as binding as the foregoing instrument actually subscribed, and in reality became an integral part of the agreement under which the work was done (Dutch v. Mead, 36 N. Y. Super. Ct. 427 , 59 N. Y. 628 ). But though the weight of evidence substantiates defendants’ claim as to the contract, and though the referee erred in this respect, we cannot see that any actual harm resulted from such error; and we should not reverse upon this ground. It appears that there were departures by mutual consent from the original plan, and, furthermore, that after the time prescribed by the contract had expired the defendant Clark notified plaintiffs to go on and complete. Under competent authorities, either of these circumstances would operate as a waiver of the time condition in the con

This lien was filed for the unpaid balance of the whole contract price. In the notice of lien it is stated that all the work and materials had been actually performed and furnished. Leaving out of consideration a large number of departures from the contract which the referee finds were waived or assented to, he finds directly that in several particulars, more or less substantial, the contract was not completed. He finds that work and materials to the value of $93 were required to complete the same. I cannot see, therefore, why, on respondents’ own showing, the present case does not come squarely within the reasoning of Foster v. Schneider ( 50 Hun 151 ). The material fact is not that the builders had completed their contract, but in an inferior manner; it is that they had not completed it at all. The referee’s sixth finding of fact specifies several omissions, all of them of some importance. The plaintiffs entirely failed to supply these articles although notified to do so. They cannot argue that their statement in the notice of lien arose from a pardonable difference of opinion, they holding that they had in all respects kept their agreement, and the referee having disagreed with and found against them only as to the quality of their work. Confessedly they had not attempted to provide several things called for by the contract. We think, therefore, the allegation in the notice was untruthful, and might have been misleading to subsequent lienors and the public, and, for the reasons given in the opinion in Foster v. Schneider (supra), the lien must be declared invalid.

There is also ■ an exception in the case which deserves notice. On the examination of Matilda Clark, the defendant, she was asked: “Q. Now did you do anything in reference

We think the defendants should have been given the fullest opportunity for showing what this arrangement between the parties as to the lumber was. The learned counsel for respondents contends that no evidence of this character was admissible because the answer is a general denial,-and that by the authority of McKyring v. Bull ( 16 N. Y. 297 ), payment, or part payment, cannot be proved as a defense under such a pleading. But this testimony would properly come in under a general denial, as tending to show that plaintiffs had not done one very important thing they allege they did in the complaint, i.e., furnish all the materials for the house. If the defendant herself furnished such lumber, this allegation of the complaint would be effectually disproved. By the referee’s action in admitting part of the testimony on this point, and excluding the rest, we are left in the dark as to what the actual transaction was. But it certainly appears that defendant claims that she supplied the lumber. If this were the fact, even if the notice of lien had contained no untruthful allegations, she would certainly have been entitled to a very substantial deduction from .the contract price. If the original credit was given to plaintiffs, but defendant was obliged to go security for it before it could be obtained, and is still liable as guarantor or.surety for the unpaid lumber bill, we do not

We are, of course, discussing a hypothetical case. If defendant has actually paid for the lumber, her right to prove the amount and claim deduction thereof could not be questioned. What has been said shows the necessity that existed, in any view of the controversy, of bringing out fully the facts of this transaction.

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

J. F. Daly and Bischoff, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.