Blazo v. Gill — 53 N.Y. St. Rep. 154

Majority

p. 154

Augustus Blazo, Resp’t, v. William P. Gill, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

1. Contract—Building—Estimate.

Plaintiff contracted to supervise, build, furnish and complete a house for defendant and was to contract for the building with the greatest economy at the exact cost, but there was no limitation that the cost should not exceed the estimate made. Attached to the contract was a memorandum containing a list of items with sums set opposite them aggregating the sum defendant claimed the building was to cost. This memorandum purported to be an estimate only, and plaintiff so testified. Meld, that a finding that there was only an estimate and no agreement that the building, should cost no more was supported by the evidence.

3. Same—Cost of material and labor.

Proof of the amount of cost in gross and detail, accompanied by vouchers and testimony of the persons supplying materials that their bills were reasonable and just, is sufficient to sustain a finding in favor of plaintiff, in the absence of proof showing that the articles were not delivered.

p. 155

Appeal from judgment in favor of plaintiff, entered on report •of a referee.

Action for a balance alleged to be due on a contract for building a house for defendant

G. G. & F. Reynolds, for app’lt; J. T. Marean, for resp’t

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 atvery 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 -employes 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.

Dykman and Pratt, JJ., concur.