Harrison Granite Co. v. Lambie — 88 N.Y.S. 862

Majority

p. 862

HARRISON GRANITE CO. v. LAMBIE.

(Supreme Court, Appellate Term.

June 13, 1904.)

Headnote

1. Contracts—Construction—Question for Jury.

Where a contract for the erection of a monument provided that it should be erected by a certain date, or “very soon thereafter,” the question of whether the contract was performed and the monument delivered within the required time was one of fact for the jury.

Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by the Harrison Granite Company against J. Edward Lambie. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.

Underwood, Vanvorst & Hoyt, for appellant.

Arthur S. Luria, for respondent.

Plaintiff, by written agreement, was to make and set up in the defendant’s lot in Oak Hill Cemetery, at Washington, C., a Barre granite marker, the stone to be delivered and set up on said lot “September 15, 1902, or very soon thereafter.” The contract, as originally submitted to the defendant for signature, contained the words, “To be erected by September 15th, or as soon thereafter as possible,” and these words were changed by the parties to read as first above stated. What was meant by the substituted phrase “by September 15th, or verj'- soon thereafter,” and whether the plaintiff performed the contract in that respect, and delivered and set up the stone within the required time named in the contract, was therefore a question of fact to be determined by the trial court from the testimony and all the facts and circumstances of the case. Upon this question the court below found in favor of the defendant, and, there being sufficient testimony to uphold such finding, the judgment should be affirmed.

Judgment affirmed, with costs.