Logan v. Berkshire Apartment Ass'n — 46 N.Y. St. Rep. 14

Majority

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William J. Logan et al., App’lts, v. The Berkshire Apartment Association, Resp’t.

(City Court of New York, General Term,

Filed March 10, 1892.)

Headnote

1. Pleading—Contract.

The complaint in an action upon a contract need not set out fully the details thereof ; it is sufficient to allege generally the contract terms, and upon the trial to prove its full performance.

2. Contract—Performance.

Plaintiffs contracted to make for defendant a hot water pressure tank, the work to be done to the satisfaction of defendant. The complaint alleged the delivery of the tank ; that it required slight alterations, which plaintiffs proceeded to make but were prevented by defendant from doing so. The answer was a general denial. Plaintiffs' evidence was to the effect that they completed the tank; that it was removed to defendant's house, when complaint was made as to the position of the manhole, which was corrected, and defendant’s representative agreed to accept the tank if plaintiffs did some extra work, which was done. Held, error to dismiss the complaint on the ground that the contract was not completed.

3. Same—Satisfaction.

Under the contract in question, the plaintiffs were not bound to “ satisfy '' defendant, but were only required to do the work in a manner that ought to have satisfied it.

Appeal from judgment in favor of defendant, dismissing the complaint.

Lyons & Smith, for app’lts; Stickney, Spencer & Ordway, for resp’t.

The plaintiffs are iron workers. They agreed to furnish defendant and place in its house a hot water pressure tank, the size, character and style of finish of which was fixed by the written contract made, which contract further provided that all the work was to be done to the entire satisfaction of defendant, all for $235, and the work to be completed in from two to three weeks.

The complaint alleges only part of the written contract. It does not pretend to set out fully the details thereof, nor is the plaintiff required by law to do so. It is sufficient to allege generally the contract terms and upon the trial to prove its full performance.

It further alleges the delivery of the tank, that it required slight alterations which were rendered necessary because of the change of location of a man hole on said tank, as directed by defendant, and which they proceeded to make while said tank was in defendant’s house, but were prevented by defendant from completing the same.

The answer is a general denial. At the trial, after the close of • plaintiffs’ case, the learned trial justice dismissed the complaint as. follows:

First. Upon the ground that it appears both from the pleadings,

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the testimony and the remarks of counsel that the contract alleged in the complaint was not completed by the plaintiffs, and, therefore, that until it was completed the plaintiffs cannot recover the contract price.

Second. That the contract, as proved, is entirely different from the contract pleaded, and, therefore, makes an entirely different cause of action, which the defendant is not now ready to meet.

Third. That the work done in pursuance of the contract, which is in evidence, is not shown to be done in accordance with the contract, and, particularly, in that it has not been shown that it was done to the satisfaction of the defendant

To which plaintiffs duly excepted.

The proposition of law applicable to this case is stated in Kunz v. City of Troy, 104 N. Y., 352 ; 5 St. Rep., 642 , as follows:

“ Where a plaintiff is non-suited he is entitled to the most favorable inferences deducible from the evidence, and in reviewing the non-suit all contested questions of fact are to be deemed established in his favor.”

In the light of this exceedingly just rule we will examine the plaintiffs’ evidence and complaint.

The complaint alleges that plaintiffs entered into an agreement with defendant to furnish the tank in question and that they made and delivered said tank to defendant. It must be assumed that the tank as furnished complied with the terms of said agreement; if it did not, then defendant’s plain duty was to allege that fact in its answer, and in view of the fact that it kept the tank, to set up a counterclaim for damages for breach of said contract This it did not do, merely making a general denial.

As for the plaintiffs’ testimony, it is to this effect:

That they completed the tank. That as completed the manhole was on the (up) side and two small drip holes which were misplaced by plaintiffs’ workman, but which would not interfere with the working of the tank in any way and could be easily stopped and made tight. And that the attention of defendant’s agent (Moran) was called to these facts before the tank left plaintiffs’ place of business, which was in Brooklyn, the defendant’s house being in this city.

That subsequently said tank was removed to the defendant’s house and then Moran complained, saying that the man-hole should have another position upon the boiler.

That he and plaintiffs talked that matter over and finally arranged the boiler in such a way that the position of the man-hole was satisfactory to Moran, and he agreed to accept the boiler providing plaintiffs did some extra work, which they did, and that they completed their contract.

This is plaintiffs’ testimony. It is quite true that some of this testimony a jury might believe was weakened on cross-examinatian, but under the rule of law herein quoted we must in plaintiffs’ behalf take the most favorable view of said testimony.

And therefore we think that the said justice erred in dismissing the complaint upon the ground (first) that the contract alleged in the complaint was not completed.

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As above stated by us, the complaint does not claim or pretend to set out fully and in detail the contract made between plaintiffs and defendant, and therefore the question whether or not the plaintiffs complied with said contract should have, been submitted to the jury.

The trial justice should not have determined that fact; besides the defendant had according to plaintiffs’ testimony received and accepted the boiler, and therefore it had only the right of counterclaim in case plaintiffs did not fully perform their contract. 2 Benjamin on Sales, 548.

As to the “ third ground of dismissal,” we think it was error to dismiss for the reasons therein set out, because the testimony shows “that plaintiffs completed their contract.”

The question whether they did so to defendant’s satisfaction was for the jury to decide.

The plaintiffs in this case were not bound to “satisfy” defendant.

They were only required to do said work in a manner that “ ought ” to have satisfied it. Duplex S. Boiler Co. v. Garden, 101 N. Y., 387 ; 1 St. Rep., 51 .

. The pleadings in this action are hereby amended so as to conform to the proof.

Judgment is reversed and a new trial ordered, with costs to appellants to abide event of action.

Ehrlich, Ch. J., and Van Wyck, J., concur.