Sherwood v. Houtman — 26 N.Y.S. 150

Majority

p. 150

(73 Hun, 544.)

SHERWOOD v. HOUTMAN.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Action on Contract—Evidence.

In an action for services rendered under a contract it appeared that plaintiff agreed to construct a stable floor so as to be water-tight. The

p. 151

ground floor below was to be used as a repository for carriages, and it was necessary that the stable floor was to be absolutely water-tight. Meld, that plaintiff could not recover where it appeared that the floor was not water-tight

Appeal from Kings county court.

Action by William M. Sherwood against Tjark J. Houtman to recover a balance to be due under a contract. There was a judgment in favor of plaintiff, and defendant appeals.

Reversed.

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

Thomas E. Stewart, for appellant.

Arthur Hurst, for respondent.

The contract was in writing, and required the stable floor to be water-tight. As the ground floor was to be used as a repository for carriages, it was clearly necessary that the floor above should be absolutely tight, or the business could not be carried on. Both parties contracted upon that principle. There is no substantial conflict of evidence as to the fact that the contract was not so completed. It is true that plaintiff and some of his witnesses testify in general terms that he completed the floor so as to be watertight; but that is, from the nature of the case, only matter of opinion. They so completed it that they expected it to be water-tight. But the proof is conclusive that the floor was not water-tight, and the evidence sufficiently shows that the floor was built upon a wrong principle, and required to be relaid before it could be tight. The plaintiff failed in the essential part of his contract, and the verdict in his favor was contrary to the evidence. The order denying a new trial must be reversed, and a new trial granted, with costs to abide the event. All concur.