Sherwood v. Houtman — 80 N.Y. Sup. Ct. 544

Majority

p. 544

William M. Sherwood, Respondent, v. Tjark J. Houtman, Appellant.

Headnote

Contract to lay a stable floor — water tightness of the floor of the essence thereof— verdict contra/ry to the evidence.

A contract made in writing between two persons required a stable floor, which. was to be erected by one of them, to be water tight. The ground floor was to 1 be used as a repository for carriages, and it was necessary that the floor above should be absolutely water tight.

It was conclusively shown, upon the trial of an action brought to recover the unpaid balance alleged to be due on such contract, that the floor was not watertight.

B.eld, that the plaintiff failed in the essential part of his contract, and that a verdict in his favor was contrary to the evidence.

Appeal by tbe defendant, Tjark J. Houtman, from a judgment of tbe County Court of Kings county in favor of the plaintiff, entered in tbe office of the clerk of tbe county of Kings on tbe 26th day of September, 1892, upon tbe verdict of a jury for $200, and also from an order entered in said clerk’s office on tbe 21st day of September, 1892, denying tbe defendant’s motion for a new trial made upon the minutes.

Thos. JE. Stewm% for tbe appellant.

Arthv/r Hurst, for tbe respondent.

Tbe contract was in writing and required the stable floor to be-water tight. As tbe ground floor was to be used as a repository for carriages, it was clearly necessary that tbe floor above should be absolutely tight or tbe business could not be carried on. Both parties contracted upon that principle.

There is no substantial conflict of evidence as to tbe fact that tbe contract was not so completed. It is true that plaintiff and some of' bis witnesses testify in general terms that be completed tbe floor so as to be water tight. But that is, from tbe nature of the case, only matter of opinion. They so completed it that they exjtected it to be water tight. But tbe proof is conclusive that tbe floor was not water • tight, and tbe evidence sufficiently shows that tbe floor was built upon a wrong principle and required to be relaid before it could be tight.

p. 545

The plaintiff failed in tbe essential part of Ms contract, and the verdict in his favor was contrary to the evidence.

The judgment and order denying a new trial must be reversed and a new trial granted, with costs to abide the event.

DyicmAN, J., concurred.

Judgment and order denying new trial reversed and a new trial granted, costs to abide event.