Cassidy v. Fontham — 38 N.Y. St. Rep. 177

Majority

p. 177

Patrick Cassidy et al., Resp’ts, v. Charles F. Fontham, App’lt.

(New York Common Pleas, General Term,

Filed April 20, 1891.)

Headnote

1. Contract—Evidence.

Where a contract simply provides that the contractor shall furnish all materials and labor for plumbing and gas fitting, evidence of experts engaged in that trade or business as to whether the furnishing and setting up of ranges was included in it is admissible.

2. Same.

In an action on such contract evidence that it was distinctly agreed that the contractor was not to _ furnish the ranges is admissible; it does not tend to vary, but to explain the ambiguous or indefinite portion of the contract.

3. Same—Extra work.

Evidence that certain alterations directed by defendant made necessary certain additional work and materials, and that an express order for each item of such additional work was given, is sufficient to sustain a finding in favor of a claim for extra work, although the contractor testified that without these extras the house would not be well plumbed.

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4. Mechanic’s lien—Proof of price and value of work.

In an action to foreclose a mechanic’s lien, proof of the contract and the price named in it and the value of the extra work is sufficient proof of the price and value of the work within the meaning of the statute.

Appeal from judgment sustaining and foreclosing a mechanic’s lien, filed by one Charles Missall against two houses and lots on Ninety-fifth street, in the city of New York, and assigned to the plaintiffs.

Thomas Stevenson (Edmond R. Terry, of counsel), for app’lt; Thomas C. Ennever, for resp’ts.

This is an appeal by the defendant Fontham from a judgment in favor of the plaintiffs in an action to foreclose a "mechanics’ lien for $983, the claim being for $585, balance of contract, and $398 for extra work. The referee allowed the whole balance on the contract and $333 for the extra work. The contract was as follows:

“New York, May 28, 1889.

“Agreement made between Charles Fontham, owner, and Charles Missall, plumber. The secondpart hereby agrees to furnish all materials and labor for plumbing and gas fitting in two houses Nos. W. Fifty-ninth street, except sewer in cellar, tank on roof, wash tubs, gas fixtures, for the sum, of twenty-seven hundred dollars. Payments:

When gas fitting is done............................. $250

All rough work in.................................. 500

Rough work is passed by inspector..................... 250

Fixtures and lead pipe in position...................... 500

During the progress of work.......................... 500

Finished and passed by the board of health.............. 700

“ Charles Missall, “Charles F. Fontham,”

Missall filed a lien, and afterwards assigned the claim in lien to the plaintiffs.

The chief dispute in this action was whether the plumber, under his contract to furnish “all materials and labor for plumbing,” was bound to furnish twenty ranges required in the said houses, and which were of the value of $400. He was not required to do so unless ranges were material for plumbing, or the setting of ranges was labor for plumbing. Whether they were or not depended upon the testimony of persons engaged in the plumbing trade or in the business of plumbing; no other person could say from reading the contract whether the furnishing or setting up of ranges were included in it. The referee, therefore, properly allowed evidence of experts upon this point, and there was practically no disagreement among them, for they all testified, in effect, that ranges were not plumbing materials.

The defendant claimed, however, that they were included in the contract of Missall because they were inserted in the specifications for plumbing and drainage approved by the board of health and shown to Missall by defendant before he made his contract. ' No

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reference to the specifications appears in the contract, and Missall «wore that if was distinctly agreed that he was not to furnish the ranges. This testimony was objected to by the defendant on the ground that it tended to vary the plaintiffs’ written contract The objection was not well taken. The contract, by its terms, was left indefinite, uncertain or ambiguous on this point, and was explained and not varied by the testimony.

The rule that excludes oral testimony to contradict or vary the terms of a written instrument is directed against evidence that would add other words to it, or substitute other words in its stead, but does not apply where there is any uncertainty as to the object or extent of the engagement of the parties, or where the meaning of the terms employed is technical, in which case the testimony of experts is admissible to explain it. Greenleaf on Evidence, §§275-280. Yerbal testimony must be resorted to, to ascertain the nature of the subject to which the instrument refers. Id., 286. In the term “ subject ” in this connection is included everything to which the instrument relates. Ph. & Am. on Ev., 732, note. 'Thus where certain premises were leased, including a yard described by metes and bounds, and the question was whether a cellar under the yard was or was not included in the lease, verbal evidence was held admissible to show that at the time of the lease the cellar was in the occupancy of another tenant, and therefore it could not have been intended that it should pass by the lease. So where a house or a mill or a factory is conveyed eo nomine and the question is as to what was part and parcel thereof and so passed by the deed, parol evidence on this point is admitted. Conversations between the parties at the time of making a contract are competent evidence as a part of the res geske to show the sense which they attached to a particular term used in the contract, but verbal agreements preceding the contract would be inadmissible. Dent v. K A. S. Co. 49 N. Y., 390 .

The defendant contradicted Missall on this point, and said he told him he would have to furnish the ranges, but the referee found that Fontham told Missall, or agreed during the negotiations for the contract, that he would not be required to furnish the ranges, and there does not appear to be any reason for disturbing his finding.

As to the extra work, it appears that after the contract was made the defendant made certain alterations in the location of the bath tubs and wash basins in the said houses, so that it became necessary to put in an additional line of water pipe and an additional line of vent pipe in each house, which Missall furnished, and the net value of the work was $160. Missall also put in and fitted up, at defendant’s request, an extra wash tray in each apartment, twenty in all, at a cost of a hundred dollars; also, the large sinks and sink-backs at a cost of thirty-two dollars. Changes of plan and specifications with respect to the tank and pump made by the defendant required a change of connections, which he requested Missall to make, and which the latter did make, at a cost of forty dollars. This made up the sum of $333 allowed for extra work by the referee.

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An express order for each item of this extra work was proved by Missali’s own oath. The defendant claims that the findings are unsupported by evidence, or that the testimony is unjustly distorted. This does hot appear to be the case. The proof is clear and straightforward. It is urged, however, that Missall testified that these things were necessary to the completion of his contract, but this is rather a distortion of what he did swear to. What he stated on cross-examination was, that without these different extras the houses would not have been well plumbed, a different thing, and doubtless the reason why the extras were ordered by defendant.

The defendant claims that there was error in plaintiffs being allowed to give evidence as to .changes from the specifications made by defendant, on the ground that when this evidence was first elicited the specifications had not been put in evidence. This was not the ground of the objection made at the trial; if it had been, it could, easily have been obviated. The position then taken was, apparently, that no reference could be had to any other paper* than the-contract.. Such an objection was not good, because the specifications were material to show what the contract called f or and what was-extra or additional work.

It is claimed that there was error in denying the motion to dismiss the complaint, because the plaintiffs had not shown when they rested that the work had been passed by the board of health. No such ground of motion appears in the case, and no point of that kind was taken at the trial"; probably for the reason that no one questioned the fact, the defendant himself testifying “Iknow that the board of health do not permit people to occupy a house until the house has been inspected and passed, and my house has been occupied by tenants, and I did not let anybody in there in any part unless the plumbing had been passed.”

The plaintiffs before resting had proved the performance of their whole contract, together with the modifications and additions authorized by the defendant, which formed the basis of the claim for extra work. They had, therefore, proved themselves entitled to the whole contract price, and to specific extra sums in amount far greater than the referee ultimately allowed them. There was no harm, therefore, in denying the motion to dismiss the complaint.

Exception is taken to the plaintiffs being allowed, on the examination of the defendant, to ask him what was said about the ranges at the date of the signing of the contract, and also to the plaintiff being allowed to give his testimony in contradiction. The point involved in these exceptions has been already disposed of. The inquiry was proper to ascertain the intention of the parties and explain their contract There is no force in the objection that having first examined the defendant upon this subject the plaintiff is bound by his answers.

The point is made that no proof was given of the price or value of the work and labor for which the plaintiffs claim, as required by the mechanics’ lien act. The plaintiffs had proved the price or value of their work when they proved the contract and the

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price named in it and the value of the extra work. The claim that the plaintiffs by the terms of their contract were to do all the plumbing work in these houses for the contract price because their contract was to furnish all materials and labor for plumbing, and therefore, they cannot recover for any extra work or expenses caused by defendant’s changes in the plans or specifications, is wholly untenable.

The exceptions to the admission of testimony by competent witnesses as to whether ranges were plumbing material or not has been already disposed of. A witness was asked whether there was a custom of the plumbing trade when specifications included ranges for the plumber to furnish and put up the ranges. He was allowed to answer, and stated that the custom was that the parties were generally governed by the specifications, but in making the contract it should be stated that the ranges are to be furnished, and if not so stated, in the witness’ opinion, the plumber was not obliged to furnish them. The evidence of custom was not proper, but the testimony of the witness amounted to more than his personal opinion on the subject, and would undoubtedly have been stricken out on motion, but the testimony was allowed to stand, and in answer to the next question the witness testified that ranges were never plumbers’ materials. This latter testimony was material, and was evidently all that was considered by the referee. Ho finding of custom was made, and the testimony of custom had evidently no effect upon his decision, which was placed solely on the grounds: First, that ranges were not plumbing materials; and, second, that the defendant excepted the ranges from the items enumerated in the specifications.

Ho other exceptions require comment. The exceptions to the findings are untenable. There is ample evidence to support them, and the conclusions of law follow logically. The refusals to find do not require consideration, as they are refusals to find facts and conclusions wholly at variance with other findings of the referee which the evidence justified.

There is an item of extra work which the referee allowed at the sum of twelve dollars, namely, sink-backs, which it is claimed is unsupported by the evidence. As there is no statement that the case contains all the evidence, we cannot consider that objection.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.