Blazo v. Gill — 23 N.Y.S. 373

Majority

p. 373

(69 Hun, 69.)

BLAZO v. GILL.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

1. Building Contract—Action for Balance Due—Evidence.

In an action to recover a balance due on a building contract, which provided that plaintiff was to contract for the building in all its details with the greatest economy, and charge everything at its exact cost, it appeared that there was no limitation therein that the cost should not exceed any certain sum. A memorandum annexed to the contract contained a list of work and materials, and there were sums set opposite the items which

p. 374

aggregate the amount to which defendant claimed the cost was limited. It purported to be, and plaintiff testified that it was, an estimate only, Held, that the referee’s finding that the cost was not limited to the amount shown on the estimate was supported by the evidence.

2. Same—Materials and Labor Furnished.

In such case plaintiff testified to the cost in gross and to the details, and produced vouchers. Bills amounting to nearly two thirds the total sum were supported by evidence of the parties showing that they were reasonable and just. Plaintiff gave defendant vouchers for each bill. Held that, in the absence of proof that the articles were not delivered, a finding for plaintiff was supported by the evidence, though plaintiff did not personally know that each article was furnished, and each day’s work was done.

Appeal from judgment on report of referee.

Action by Augustus W. Blazo against William P. Gill to recover a balance alleged to be due on a building contract. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

G. G. & F. Reynolds, for appellant.

Paine, McGuire & Low, (Josiah. T. Marean, of counsel,) for respondent.

The plaintiff, who is an architect and builder, agreed to “supervise, build, furnish, and complete” a house for the defendant for the sum of $1,500. The plaintiff was to contract for the building in all its details with the greatest economy, and was. to charge everything at the exact cost. The plaintiff completed the house at a cost for materials and labor of $18,224.68. The defendant was paid, on account of this, $16,234.57. The plaintiff seeks to recover in this action the balance, $1,990.11. The first issue which the defendant makes is that the plaintiff agreed that the house was to be completed for $16,498, besides the plaintiff’s pay for supervision. There was a memorandum annexed to the contract containing a list of work and materials, and there were sums of money opposite each which footed up at $16,498. The question tried before the referee was whether there was an estimate only, and not an agreement by the plaintiff that the building should cost no more. The parties differed in their testimony. The paper purports to be an estimate memorandum only. The plaintiff so testifies. The contract favors this view. It provides that the plaintiff shall have all cost, and there is no limitation that the cost shall not exceed' the estimate. The finding of the referee on this question is supported by the evidence. The defendant makes an issue whether or not the cost was as much as claimed. The plaintiff makes a very clear case upon this question. He testifies to the sum in gross and to its details. He is supported by vouchers. A large number of the labor and material bills are supported by the parties, showing that their bills were reasonable and just, and thus amount to over $10,000. Vouchers for every bill were given defendant by the plaintiff. The rule would be too strict which should require the plaintiff to personally know that each article and day’s work was done, or that the material man should himself know the cost of his articles. An order was given. It was apparently filled. The em

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ployes loaded the wagon, and the contents were delivered at the house. The plaintiff looked over and specified everything which had been ordered, and sent to the building, before it was paid for. In the absence of proof showing that the articles were not delivered, the finding- is warranted by the evidence. The judgment should therefore be affirmed, with costs. All concur.