Summary
In D'Amato v. Gentile (54 App. Div. 625; affd., 173 N.Y. 596) the claim of a building contractor whose omissions amounted to almost twenty per cent of the contract price was rejected.
Summary of this case from Cassino v. YacevichOpinion
October Term, 1900.
Judgment affirmed, with costs, on opinion of Mattice, J. All concurred, except Bartlett, J., not voting.
The following is the opinion of Mattice, J.:
The evidence shows that the plaintiff so far failed to perform the contract upon his part that he ought not to be permitted to recover in this action. There was no substantial performance of the contract, It is true that the rule requiring strict performance of a contract before recovery can be had has been much relaxed in cases of building contracts. Where a contractor has in good faith intended and tried to comply with the contract, and has succeeded except as to minor things omitted by inadvertence and slight defects and changes which can be compensated for in damages, a recovery should be allowed for the amount justly and equitably due to the contractor. ( Van Clief v. Van Vechten, 48 Hun, 304; Murphy v. Stickley Simonds Company, 82 id. 158. See, also, Lewis v. Yagel, 77 id. 337.) The character and extent of the defects, omissions and departures from the plain meaning of the contract are so great in the case at bar that it cannot be fairly said that the plaintiff has substantially performed upon his part, especially as he has in the main purposely made the changes complained of by the defendant. While the wisdom of the rule which permits a recovery on a building contract in cases where there has been slight and inadvertent departures from the terms of the contract cannot be doubted, yet it must be borne in mind that it will not do to so far relax the rule that contractors can willfully disregard and ignore the plain meaning and intent of a building contract, and then ask the court to adjust supposed equities based not upon a substantial performance, but upon a clear non-performance of the contract. The plaintiff claims that the changes and omissions were made with the consent of the defendant. This is denied by the defendant. From the character of the omissions, defects and changes, and from the appearance of the parties upon the witness stand, I am inclined to believe the defendant did not consent to any material change; but, on the contrary, endeavored to obtain full performance. The plaintiff evidently attempted to take advantage of the defendant by substituting in many respects an inferior class of work by making omissions and changes, thereby affecting a large saving to himself and consequent damage to the defendant, and also depriving the defendant of the benefit of his contract. The defendant was entitled to have a building constructed substantially according to the contract. This was not done. In lieu thereof there is forced upon him, through no fault of his, a building much changed from the plans and specifications, inferior in many respects and with many defects of workmanship and material. It is quite reasonable to believe that the defendant never would have made a contract for the construction of such a building as he actually received. The equities of this case do not require the court to award the plaintiff the unpaid balance of the contract price after deducting a suitable amount for the defendant's damages, but rather to deny to the plaintiff the right to recover anything upon his contract, for the very good reason that he has failed to perform on his part, and at the same time has attempted to injure the defendant. The damages to the defendant proven upon the trial by reason of the defects, changes and omissions, amounted to nearly twenty per cent of the contract price, the amount being based largely upon the difference in cost at the time the work was done. The plaintiff omitted wainscoting to the value of $112.50; window panels, $36; thirty-one fire-proof doors, $210; one fire-proof door in dumb waiter, $10; front galvanized cornice, $40; plaster cornices, $19.20; marble base in water closets, $28.50; hall partitions, $24; fireplace fronts, $50; kitchen closet, $10; windows light shaft, $30; door openers, $15; front lintels, $20; outside corner of the building not rounded, as required by contract, $50; dumb waiter smaller than contract required, $10; light shaft not constructed of brick as required by contract, $18; vestibule gaspipe omitted, $5; painting rear sills omitted, $10. There were also many defects in the construction of the building. The cellar floor was not concreted according to the contract. It would cost $100 to remedy this defect. The flooring was of an inferior quality and also the door trims. The roofing was also of an inferior quality, and not as good as required by the terms of the contract. The plastering was poor throughout and inferior to that required by the contract both in workmanship and material. Foundation wall was defective. There were many other defects of workmanship and material, which it is not necessary here to specify. These defects were so general that they permeated nearly the entire structure. The evidence convinces me that the plaintiff deliberately attempted at nearly every opportunity to substitute inferior workmanship and material in the place of those required by the terms of the contract. As before stated, the defendant did not consent to the changes nor has he waived either expressly or impliedly by his acts and conduct, the non-performance by plaintiff. It follows that the defendant is entitled to judgment dismissing the complaint on the merits, with costs, and an extra allowance of five per cent on the amount demanded in the complaint.