Hills v. Stillman , 18 How. Pr. 58 ( 1859 )

By the court—Balcom, Justice.

The forks were to be made in a good workmanlike manner, and the referee had found they were not so made. The contract, therefore, was not so performed by the plaintiff and his partner as to enable the plaintiff, as entire owner of the demand for the forks, to recover the contract price therefor, as he might have done, if the contract had been fully performed by the plaintiff and his partner. (Clark agt. Fairchild, 22 Wend. 576; Farron agt. Sherwood, 17 N. Y. Rep. 227.)

Assuming that the acceptance of the forks by the defendant did not estop him from showing they were not made in a good workmanlike manner, he was only liable to pay their value as they were made, not the contract price for them as they should have been made. And, upon a general finding for the plaintiff, that the contract price was due him for the forks, I cannot see why the record would not estop the defendant, and also his assignee of the contract, from afterwards recovering damages of the plaintiff and his partner, on the ground that the forks were not made in a workmanlike manner. (Lawrence agt. Hunt, 10 Wend. 80; Miller agt. Maurice, 6 Hill, 114; Davis agt. Talcot, 2 Kernan, 184; Rogers agt. Haines, 3 Greenl. 363.) The case is much stronger for the defendant than it would he if the plaintiff and his partner had sold the forks to the defendant for a certain price, with a warranty that they were made of a particular kind of steel, and the defence was, that they were not made of that kind of steel, but of another and less valuable kind ; for, in such case, the plaintiff would not have been obliged to v prove, in "the first place, that there was no breach of the warranty, to enable him to recover the contract price. Whereas, in the case as it is, he was obliged to establish that the forks were made in a good workmanlike manner, to entitle him to the contract price; for he could not legally show what that price was without proving the contract and putting it in evidence; and when he did that, he was bound to show he and his partner had performed the contract, to make out his cause of action for such price. It seems to me, therefore, that the defendant did not, by selling the contract for the forks to Hoyes Stillman & Co., part with his right to show, when sued for the price of the forks, that they were not such as the contract bound the plaintiff and his partner to make-for him.

My conclusion on this branch of the case is, that the plaintiff was only entitled to recover the value of the forks as they were made. For, as the case is situated, I think we ought not to pass upon the question raised by the plaintiff’s counsel, that the acceptance of the forks by the defendant estops him from claiming they were not made in a good workmanlike manner. (See 20 Wend. 61.)

The promise of the defendant to pay for the steel in question was part of his agreement to receive the first fifteen hundred forks upon the contract, that were manufactured when the same was made, and was so connected rvith it that the advances that were made by the defendant generally upon the contract should be deemed to have been made in payment for the steel, until it was paid for, as the price he agreed to pay for the steel was then due the plaintiff and his partner, and that for the forks did not, by the terms of the contract, become due until all the forks were made. It therefore follows that the referee should have held that the steel was paid for, because such advances exceeded the price of it.

For the foregoing reasons, the judgment in the action should be reversed, and a new trial granted, costs to abide the event.

Decision accordingly.