Nunan v. Doyle — 60 N.Y. Super. Ct. 377

Majority

p. 377

JAMES NUNAN, Respondent v. ANDREW T. DOYLE, Appellant.

Headnote

Mechanic's lien, discharged by the filing of bond whichtook the place of the land as security, etc—Building contract, substantial performance.

The appellant claims that the lien was invalid, and seems to rely upon one of the findings of fact to the effect that the work covered by the contract was not fully completed at the time of the trial. Meld, that a substantial completion was not referred to in this finding is evidenced by the fourth finding which states, as follows: “ that before the 14th day of July, 1890, plaintiff had substantially completed the plastering work required to be done.”

The case shows that the trial judge found that plaintiff had substantially performed the contract and the work for which he filed the lien, and that allowance was made for the lack of full performance. Meld, that where there has been a substantial compliance with the terms of a building contract, the contractor is entitled to recover the full amount of his contract less such sums as may be required for remedying the lack of full performance and completing the contract fully.

Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

Decided March 14, 1892.

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Appeal from a judgment entered upon the findings of a judge on a trial before him without a jury.

Charles J. Hardy, attorney and of counsel, for appellant, argued:—

I. The plaintiff failed to establish a valid lien. The II. and III. conclusions of law found by the trial judge, were erroneous, and the judgment for that reason must be reversed. These findings are that plaintiff, by his notice of claim of lien, acquired a valid lien against defendant’s property, which said lien was displaced by the bond given by .defendant. To these findings defendant duly excepted, and the question is, therefore, fairly presented to this court. In the notice of claim of lien filed by the plaintiff, he alleges that the lien is claimed for “ doing all the plastering in and furnishing all labor * * and all materials * * for the plastering of said * * houses ” ; and “ also doing extra plastering and extra labor caused by alteration of plans, the value of said extra plastering and extra work being altogether $1,334,” and “making the whole amount and value of said extra work, labor and materials, $16,064.00,” and that there is a “balance unpaid of $1,614.00.” And also “ That all the work and materials for which the claim is made has been actually performed or furnished for and used in the erection of said * * houses.” The notice also stated that the work was done and the materials were furnished “at the agreed price of $14,680” —thus referring to the contract between the parties set forth in the complaint. This contract referred to the specifications under which the work was to be done, and the plaintiff offered these specifications in evidence so that the contract and the specifications under which was done the work for which the lien was claimed are before the court. The court found, allowing every item claimed by plaintiff, both for balance due on original contract and for every item of extra work claimed by

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him, that the utmost amount he could claim was $1,-481.95, instead of the $1,614 claimed in the notice of lien. The court also found expressly that plaintiff did not complete the work he contracted to do; that defendant had to expend money to do work that plaintiff agreed to do ; and that the plaintiff’s work was not complete at the time of the rendering of judgment. The statements made by plaintiff in his notice of claim of lien, that he did all the work, etc., required under his $14,680 contract, that all the work, etc., for which the lien was claimed had been actually performed or furnished, and as to the balance due him, are untrue. Under such circumstances the plaintiff acquired no valid lien. In Foster v. Schneider, 50 Hun, 157 , it was held that an untruthful statement in a notice of claim of lien that all the work for which the claim is made had been actually performed, invalidated the notice and all the proceedings resting thereon. That was a case analogous to the one now before the court. There the claimant had filed a claim for the entire balance due under a contract, and the referee found that claimant was not entitled to that amount, and that a further expenditure was necessary for the completion of the work claimant had contracted to do. Daniels, J., said, “ but a more serious difficulty is presented by the notices (of hens) themselves. ® * In her notices she (claimant) has stated the nature and amount of the labor and services performed and materials furnished to be the entire plumbing work and materials furnished ’ in the plumbing work of the * * house, amounting to the sum of $800, and it was further stated that all the work and materials for which the claim is made has been actually performed or furnished.’ The claim * * was for one third of the entire contract, and each notice stated that all the work and materials for which the claim was made, had been performed or furnished. This was not a truthful statement. For * * services and materials of the value of $250 were

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still required to complete the plumbing work' of each of two of the houses, and of the value of $330, to complete the other of the houses * * and the question accordingly is presented whether upon this untruthful statement contained in each of the notices a lien * * was acquired. * * “ § 4 of ch. 342, Law of 1885, * * has prescribed when the notice to create the lien shall be filed and what it is to contain. * * But this section has required the notice to contain ‘ the names and residences of the claimants, the nature and amount ’ of the labor and service performed or the materials furnished, or to be furnished. * * Whether all the work for which the claim is made has been actually performed or furnished, and if not, how much of it. * * * The plaintiff has failed to state in the notices that the work for which the claim was made had not been wholly performed or furnished, and failed to say how much of the work under the contract still remained unperformed, and untruthfully stated that it had all been done, entitling her in the aggregate to the moneys payable for the full performance of her contract. * * “ It cannot be said that a misrepresentation in this particular would not invalidate the proceeding, for the legislature as a part of the proceeding by which the lien is to be secured has provided otherwise. It was intended in this manner that a truthful statement of the facts should be contained in the notice, and that probably was intended to be for the benefit of other claims due as well as of the owner of the property and the truthful information of the court. And the courts can no more dispense with the observance of this requirement in the making and filing of the notice than they can with any other direction required to be observed for the purpose of creating a lien upon the property.” The court held that the claimant acquired and could acquire no valid lien, because of the misstatement contained in the notice of claim. The same point was held by the

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general term of tlie Common Pleas in Close v. Clark, 30 State Rep., 671, where the court said : “ The lien was filed for the unpaid balance of the whole contract price. In his notice of lien it is stated that all the work and materials had been actually performed and furnished. Leaving out of consideration a large num her of departures from the contract, which the referee finds were waived or assented to, he finds directly in several particulars, more or less substantial, the contract was not completed. He finds the work and materials to the value of $93 were required to complete the same. I cannot see why, on respondent’s own showing, the present case does notcome squarely within the reasoning of Foster v. Schneider, supra. ” In the present case, the trial judge, by his finding, found what the referee found in the cases cited, i. e., that the statements contained in plaintiff’s notice of claim of lien were untrue. From this it follows that the findings are erroneous, and the judgment must be reversed.

II. The questions objected to were proper. Their exclusion was error for which a reversal should be had. The questions tended to. show what it would probably cost defendant to complete the work left undone by plaintiff. It will be observed that plaintiff sues not upon a quantum meruit, but sues upon the entire contract—alleging its complete performance, and for extra work done in excess of the requirements of the contract itself. Plaintiff alleges that he performed all his contract. This defendant denies and alleges that he will be compelled to expend moneys to complete plaintiff’s work. He alleges that the work was not complete at the time of the bringing of the action, nor at the time of the trial; naturally, therefore, he cannot state exactly what is the amount of his offset to plaintiff’s clahn. Why, therefore, is not evidence as to what would be the probable cost of completing the work plaintiff contracted to do material? How else could the amount of his

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offset be arrived at ? It is to be remembered that the court has found that defendant expended certain sums “ in completing the plaster work on said buildings covered by the aforesaid contracts ” (his contracts with plaintiff), “ and that such work is not yet completed.” We have here, therefore, a distinct finding that plaintiff had failed to complete his contract; that defendant had already expended money to complete plaintiff’s work; that the work was not yet complete. Naturally, therefore, defendant must expend further sums to complete the work plaintiff agreed to do.- And yet defendant was prevented from showing what it would cost him to complete plaintiff’s work. Because of the erroneous exclusion of the evidence sought to be adduced by the questions objected to, the judgment must be reversed.'

III. That the plaintiff never completed the work he contracted to do is expressly found by the trial judge. The contract expressly provides that the last payment should be made when the job should be completed. It seems that there is an inconsistency between the findings. How could it bé found that there was a balance due plaintiff in the last payment provided for in the agreement, in the face of the finding that the work had not been completed—the contract calling for the last payment only when the entire job was complete ? Having made the finding, the court' could not find that plaintiff was entitled to the last payment under the. contract. It was, on the contrary, bound to find that plaintiff, so far from having a balance due him under that contract, had never become entitled to anything on it. For this reason, the judgment rendered is erroneous, and must be reversed.

William Stone, attorney and of counsel, for respondent, argued:—

I. The fact that the court has allowed appellant §353 for moneys paid or expense incurred in completing the

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plastering does not conflict with the fourth finding that respondent’s work was substantially completed. How much of this amount was allowed for plastering- work not actually done by respondent and how much for repairing plastering work which may have been found defective, cannot be determined. The omissions and defects in the plastering were of a slight character, for which the court has allowed appellant what he has paid to remedy them. The extra work was done satisfactorily, at least no claim is made that it was not done satisfactorily, and respondent is entitled to recover for it. And it is a significant fact in this connection that notwithstanding appellant’s claim on the witness stand that respondent had not done his work properly, he set up no counter-claim for damages because of the alleged defective work.

H. Where there has been a substantial compliance with the terms of a building contract the contractor is entitled to recover the full amount of his contract, less such sums as may he allowed for remedying defects. Glacius v. Black, 50 N. Y., 145 ; Woodward v. Fuller, 80 Ib., 312; Heckmann v. Pinkney, 81 Ib., 211; Nolan v. Whitney, 88 Ib., 648; Flaherty v. Miner, 123 Ib., 382; Demorest v. Haide, 52 N. Y. Super. Ct., 398 ; Hollister v. Mott, 32 State Rep., 743; S. C., 10 N. Y. Supp., 409 . In Woodward v. Fuller, $100 out of the contract price of $550—almost twenty per cent.—was allowed for non-performance of the work, and the contractor was allowed to recover the balance, the court holding that the work had been substantially performed. In Nolan v. Whitney, contract price for certain mason work was $11,700. There were trivial defects in the plastering for which $200 Avas allowed by the court, and for the balance due judgment was given for the contractor. Here the amount allowed was a little less than two per cent, of the contract price. In Flaherty v. Miner the contract price of the work was $3,500, $900

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of which was paid, and for the balance of which the plaintiff sued defendant. The jury gave a verdict for plaintiff for $2,000, thus apparently allowing $600 for expense of work which plaintiff should have done. This was more than sixteen per cent, of the contract price. The verdict was allowed to stand. In Hollister v. Mott, which was an action by a sub-contractor to foreclose a mechanic’s lien against an owner and contractor, the contract price for building three houses was $2,970, which included certain lateral sewers, which the contractor failed to complete, but which the owner completed at an expense of $180. There were also some defects in plastering which cost $10 to complete, and a defect in one chimney which cost $3.50 to complete, making in all $193.50, which amount was allowed on the trial to the owner. The court held that there had been a substantial performance of the contract, and as full compensation had been allowed for defects, the lien could not be defeated. In this case the defects amounted to over six per cent, of the contract price. In the case at bar, the contract price being $14,680 and the court having allowed $453 for incomplete or defective work, the percentage allowed is less than two and one half per cent, of the contract price. This small percentage certainly warranted the finding that the plastering work had been substantially completed.

This is an appeal from a judgment in favor of the plaintiff.

The action was brought to foreclose a mechanic’s lien. The amount claimed to be due was $1,614, and was for a balance upon a contract of $14,680, and for extra work. The recovery was for $1,063.60. The appellant claims that the lien was invalid and seems to rely greatly upon a finding of fact which is in effect that the work covered by the contracts was not yet completed at the time of the trial. • That a substantial completion

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was not referred to in this finding is evidenced by the fourth finding, which reads, “ that before the 14th day of July, 1890, plaintiff had substantially completed the plastering work required to be done * * * "

The case shows that the referee found that plaintiff had substantially performed the contract and work for which he filed the lien. Allowance was made for the lack of full performance.

Hollister v. Mott, 32 State Rep., 743, is satisfactory authority that a recovery ought not to be defeated upon the ground that there was not full performance by the plaintiff. Substantial performance will suffice.

I have examined the exceptions which appear in the case and find no error which warrants a reversal.

The judgment should be affirmed, with costs and disbursements.

Sedgwick, Ch. J„, and Gildersleeve, J., concurred.