Adams v. Lawson

The plaintiff, as trustee for the benefit of certain creditors, seeks in this action to recover damages for the alleged breach of a building loan agreement.

The Appellate Division having unanimously determined that there is evidence supporting or tending to sustain the verdict of the jury, we are precluded from examining any question of fact.

A statement of a few of the undisputed facts will render clear the questions of law presented by this appeal. On the

On the same day the defendant and the plaintiff entered into a further agreement in writing whereby the plaintiff agreed to take over from Hilton and Levy a deed of the premises conveyed to them by the defendant and an assignment of their interests in the building loan agreement; and the plaintiff also agreed to use his best endeavors to procure the discharge of all mechanics’ liens filed against said buildings and to comply generally with the conditions of the building loan agreement. On the same day the plaintiff entered into an agreement with six of the creditors of Hilton and Levy, wherein they agreed to discharge certain mechanics’ liens and continue under the contract. On the lOtli of October, 1902, the defendant and the plaintiff stipulated that the contract time for carrying out the agreement should be extended to the 24th of October, 1902.

The two provisions of the contract having an important bearing upon the exceptions presented by this appeal are the following: The “ Third ” subdivision of the contract reads, in

Subdivision 16 First,” paragraph 5tli of the contract reads as follows: “That when the respective stages of completion of said buildings shall.be respectively reached by the said parties of the second part, before they shall be entitled under this agreement to receive the installment before provided to be paid under such respective stage of completion, they shall notify the said party of the first part at least five (5) days beforehand of the fact that they are ready for a payment, and the approval of the said party of the first part first had as to the work done before such payment or payments is,or are made.”

As before stated, the time for the performance of this building contract was extended until Friday, the 24th of October, 1902. On the evening of that day the defendant was notified over the telephone by the plaintiff’s attorneys that the last payment under the contract was.due, being the sum of thirty-five hundred dollars. There was a conflict in the evidence as to the nature of this colloquy over the telephone, but with that we have no concern. There is no dispute as to the attorneys for the plaintiff having made this demand. Thereupon the time was set running under the above-quoted clause of the contract, which provided that the contractors • were to notify the defendant “ at least five (5) days beforehand of the fact that they are ready for a payment, and the approval of the said party of the first part first had as to the work done before such payment or payments is or are made.” This provision must be construed as a further extension of the time for five days after the payment is actually due, according

It is undisputed that the plaintiff, Adams, was a clerk in the office of his attorneys and that Mr. Hatchings of that firm was practically in control of his interests, as was quite natural under the circumstances. It is also undisputed that mechanics’ liens for a large amount were filed on Saturday morning, the 25th of October, 1902.

This action was subsequently commenced to recover, not the final payment due under the contract of $3,500, but for damages in the sum of $9,500 and interest from the 25th of October, 1902. The defendant’s answer, after several admissions as to facts not controverted, was substantially a general denial, the complaint having alleged full performance on the part of the plaintiff. The jury rendered a verdict apparently for the final payment of $3,500 with interest and judgment was entered for that amount, with costs.

At an early stage of the trial the. question was sharply presented as to the character of evidence that the defendant was entitled to introduce under his general denial. The complaint in brief was the allegation that the plaintiff had performed the building contract on his part; that the final payment of $3,500 was due on the 24th of October, 1902, and by reason of defendant’s default he was damaged in the further amount of $6,000. The answer denies these allegations; in other words, the defendant asserts that the final payment of $3,500 was not due by the terms of the contract on the 24th of October, 1902, and that he was entitled to sustain that general denial by competent evidence. The question now presented is whether his right in this regard was improperly limited by the trial judge, thereby excluding from the consideration of the jury evidence that might have led them to a different conclusion.

In the 'case of Farmers' Loan & Trust Co. v. Siefke ( 144 N. Y. 354 , 358) Chief Judge Andrews said: “ But as

In Benton v. Hatch ( 122 N. Y. 322 ) it was held that under an answer denying the allegations of the complaint in an action of ejectment, the defense of want of title in plaintiff is admissible.

The defendant was desirous of proving the non-performance of the contract; that the clause already cited providing in substance that where the materials, fixtures or articles used in construction were not purchased so that the ownership thereof would vest in the contractors on delivery at the buildings, he was entitled to refuse performance on his part. The defendant further desired to show that there had not been full performance of the contract; that materials, fixtures and articles were delivered under conditional contracts of sale prior to the time of performance; also that certain materials, fixtures and articles had been removed from the buildings prior to the 24th of October, 1902, and subsequent thereto during the five days allowed the defendant by contract to ascertain whether the buildings were in such a condition as to warrant him in making the final payment.

After some ineffectual efforts the defendant was permitted to make this offer: “We desire to prove that these houses were never finished ; that when we went into possession they were destroyed, the mantels were torn out and the houses were practically taken apart under the instructions of Hr. Hitch

If the defendant had been able to prove that these houses were not finished on the 24th of October, or if he could have established the fact that there were materials and fixtures placed therein prior to that day under conditional bills of sale, he was entitled to do so under his general denial. Furthermore, he should have been allowed to prove, if he could, all that happened during the five days succeeding the 24th of October; he was also entitled to prove, if possible, that certain parties had been requested by plaintiff’s counsel, either verbally or by letter, to exercise their supposed right of removal from the buildings of materials or fixtures either before the 24th of October, or during the five days next succeeding; also to have shown, if he could, that mantels and other fixtures and materials were forcibly removed from said buildings during the period aforesaid.

One of the plaintiff’s counsel admitted, upon, the stand,

Donovan, above alluded to, when on the stand, was asked this question : “ After getting the chattel mortgage or the conditional-bill of sale, did you subsequently remove the plumbing work? Objected to as incompetent, immaterial and irrelevant,” and the defendant excepted. The defendant sought to prove by Mr. Hitchings, when on the stand, that lie had knowledge of the removal of furnaces; he was asked whether he had ever written a letter in which he had referred to the removal of these furnaces; or wliethér he had ever written any letter on the subject whatsoever. All of these questions were ruled out as irrelevant and immaterial and exceptions taken.

We are- of opinion that the ground covered by this offer and the exceptions to specific questions that were overruled involve subjects concerning which this defendant was entitled, under the general denial, to adduce such proof as he had tending to controvert those facts that plaintiff was bound to prove in order to establish his cause of action.

The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

(dissenting). The material facts in this case may be stated very briefly. The plaintiff had a building contract

The buildings were by the terms of the contract as extended to be completed on the 21tli of October, 1902. The contract contained a provision that the defendant should be entitled to five days’ notice that a payment should be required by the plaintiff, the builder. The effect of that provision is that, although the builder had become entitled to the payment by reason of the fact that the houses had reached the stage of completion provided by the contract, yet the defendant should have five days after the notice within which to make the payment. This provision applied to all the payments provided by the contract, as well as to the final payment, which is the only one with which we are concerned in this case. The contract provided that the payment which the plaintiff has recovered in this case should be made when the houses were completed ; and the fundamental questions in the case were whether the plaintiff had in fact performed his contract of completing the houses, and whether the defendant had waived the provision which gave him five days in which to make the payment.

There was much testimony given at the trial bearing upon the question whether the houses had been completed according to the contract. There was also testimony given to show that the defendant had waived the provision as to five days’

We need not, therefore, look into the evidence for light upon questions thus established. The learned trial judge gave the jury very full and fair instructions with respect to these questions. They were told that unless the houses were completed in substantial conformity to the contract that their verdict should be in favor of the defendant, but that if upon the evidence it appeared that they were substantially completed then so far the plaintiff was entitled to recover. He also instructed the jury that the defendant was entitled to the five days provided by the contract to make the payment after the completion'of the building unless the defendant had waived that provision by notifying the plaintiff in advance that he did not intend to make the payment and would not as he had already put into the houses all the money he intended to.

There is nothing of the case left for review in this court save only the exceptions taken by defendant’s counsel on the trial arising upon rulings of the court. There are some exceptions in the record taken to the charge of the court to the jury, but they are not argued by the learned counsel for the defendant either orally or upon his brief, and hence I conclude that the counsel did not intend to raise them. If they were before us for review it is obvious that they are without merit, and so it may be assumed that the only questions presented by the record are the exceptions taken at the trial to rulings upon matters of evidence.

These exceptions relate to a feature of the case that is liable to mislead the mind, as it evidently has misled the defendant’s counsel. In general terms that feature of the case may be stated as follows : It is said that the contract provided that the houses should be passed to the defendant without liens or claims of that character; that some of the materials that went into the buildings' were purchased under conditional sales which were to the effect that the title should remain in the seller until the goods were paid for, and that some time after the 24th of October, the day which by the verdict of the jury the plaintiff completed the contract, certain parties entered the house and took therefrom mantels set into the walls and other things of that character which were delivered upon conditional sales. Whatever evidence there is in the case or which was offered is involved in much confusion and obscurity. It is impossible to tell from the record when this looting, as it is called by the defendant’s counsel, happened or who the parties were that engaged in it. This defense, if it be one, is very vague as to the time, place or person. It is very difficult to state the details of these transactions from anything that is presented on the argument. Nothing of that kind appears from the defendant’s answer; that pleading did put

It seems to me that the vague and very confused claim of the defendant in regard to what is called “looting” proceeds from a mistake as to the law or the facts, or both. A conditional sale of material to be used in erecting a building cannot very well be conceived of after it has been used and attached to the structure. When the houses in question were completed they became a part of the real estate. The right of the seller upon a conditional sale could not in the nature of things exist only up to the time when the personal property vras transformed into real estate. If a dealer in brick, stone or iron should sell these materials to a builder and the builder had used them in the construction of a house, the seller could not well reclaim them upon the idea that the sale was conditional and the title did not pass upon such a sale. If the seller permitted them to be used in the construction of a building he would not be entitled to pull down the building in order to reclaim some of the materials used in its construction. He may of course file a lien for these materials, but if he could tear down the structure, whether it be great or small, on the claim that the sale was conditional, then obviously the statute in regard to liens was unnecessary. The seller of materials could always, according to the defendant’s contention, make a conditional sale, and if payment was not made at the time agreed upon he could pull down the house and reclaim the materials no matter who the owner was. If these houses were looted, as the defendant claims, then it must have been done by some one who was a trespasser, since it could not in any legal sense be done by the person who furnished the materials upon a conditional sale; and yet it is upon some such notion as has here been outlined that the defendant relies for a reversal of the judgment. Of course if the plaintiff had completed the houses, as the jury found, on the 24th of October, the law day prescribed in the contract, then he is not responsible for any wrongs or trespasses 'that may have

The only exceptions argued by the defendant’s counsel, or to be found on his brief, relate to this particular question. He complains that he was not permitted to go into the facts to show, as he says, that the houses were looted. Who did the wrong, or when, and to what extent, if at all, are questions that are not disclosed by the offers or the record in such a way as to enable us to deal with the question, if it is at all involved in the case. It will be entirely fair to the defendant to review the exceptions as they appear upon the briefs of his counsel. In the third point of the defendant’s counsel’s brief there was an offer to prove certain things. It reads as follows: “ We desire to prove that these houses were never finished; that when we went into possession they were destroyed, the materials were torn out and the houses were practically taken apart under the instructions of Mr. Hiteliings by written communications to each creditor.” So far as this is an offer to prove that the houses were never finished that question was fully litigated and submitted to the jury. Then the offer is in regard to certain things “when we went into possession ; ” that is, that the houses were destroyed, the materials were torn out and the houses were practically taken apart under the instructions of Mr. Ilitchings by written communication to each creditor. How Hitehings was not a party to this action. The plaintiff was not responsible for Hitchings in any way, and then it is said all this was done by a “ written communication.” I think that the trial court very properly refused to listen to a mere offer so vague and extravagant and so foreign to the issues involved. Moreover, it called for the contents of a written communication, and if the contents were at all material the writing should have been produced or accounted for. The offer to show a state of things existing when the defendant went into possession, without stating when such possession was begun, was properly rejected.

I have now referred to all the exceptions argued or presented on the brief of the learned counsel for the defendant. Ho exception taken to the charge is argued or discussed in any form, and, therefore, it must be presumed that they are abandoned. All we have is a general statement to the effect that all the exceptions taken to the charge or refusal to charge are a good and sufficient reason for the reversal of the judgment. Such a general and sweeping assertion in regard to the charge docs not call for much discussion. If the trial judge committed error in that respect the defendant’s counsel should have put his finger upon the point and not left it to this court to grope its way through a record in order to find some error upon which to disturb the judgment. There are, however, one or two paragraphs in the charge which may be noticed since they show very clearly the principle upon which the case was tried and submitted to the jury. The learned trial judge said: “ It has crept into this case that after the 25th of October some of these persons who had furnished material went in and took out mantels and other things. That does not affect the verdict in any way in this case. The question is were the buildings completed on the 24th ? If so, the plaintiff can recover. If not, he cannot recover. In respect to small things that were unfinished that might reasonably, naturally be overlooked or incompleted in so large a contract as this — if you find there ivas a substantial completion in the case, then you may come to the conclusion that the plaintiff is entitled to recover.” The other proposition of the learned trial judge is as follows: “ How in respect to the liens in this case; the testimony is they Avere filed on that night or the next morning—the night of the 24tli or the next morning. If you find that the defendant absolutely

It is assumed in the prevailing opinion that the date for the completion of the houses was the 29th of October instead of the 24tli of October. It seems to me that this assumption entirely ignores the record. This date is fixed by adding the five days to the law day provided by the contract, which was October 24th. The provision in regard to the five days was simply this: It required the plaintiff to notify the defendant five days beforehand of the fact that he was ready for a payment. Plainly this called for some action on the part of the •plaintiff; that is, he was required to give notice that he was ready to receive the payment. He did not give the notice for the reason that the defendant had waived it. This provision of the contract was not an agreement to pay money, since that was provided for in the original agreement; but it ivas a stipulation that tlie plaintiff should give a certain notice. Surely the defendant could waive the right to such notice, and the question was submitted to the jury to find whether he did or not, and the finding was that he had waived it, and that finding has been unanimously affirmed, and yet the prevailing opinion treats the question as if the jury had found the other way. The question whether the law day was the 24th of October or the 29th is a vital question, but it seems to me that it is settled by the verdict of the jury, unanimously affirmed. The jury found that the plaintiff was not obliged to give the notice after he had been informed by the defendant that no further payment would be made. To say that after this declaration on the part of the defendant the plaintiff was still bound to give the notice, is to say that lie was bound to do a vain thing.

The other point in the case relates to the materials which it

Any liens that attach to the property at any time must be measured by the sum found due from the defendant on the contract; that is to say, the lien attached to the money due or payable as the final payment. There is no evidence in the case that any lien was filed against the property after the plaintiff took over the contract and prior to the completion of the work on the 24tli of October. If the contrary was claimed in behalf of the defendant, then the attention of the

Cullen, Ch. J., Haight, Vann, Hiscock and Chase, JJ., concur with Edward T. Bartlett, J.; O’Brien, J., reads dissenting opinion.

Judgment and order reversed, etc.