Cullen v. Gallagher

O’Brien, J.:

There are many questions raised and discussed by the appellant, but most of them were not presented by the pleadings below, and, therefore, are not before us for review. The main question, however, as to whether there- was a substantial performance by the plaintiff of all the provisions of his contract with the defendant, was, as we have seen, upon conflicting evidence, resolved in favor of the plaintiff. - It "would serve no useful purpose to summarize the evidence adduced by the parties respectively upon this question. There being sufficient to support the conclusion at which the learned trial judge arrived, We should not be justified in disturbing it.

On the question of delay, while it was provided that the work was to be completed within three and a half months from May, 14,1894, and it appeared that the plaintiff did not cease working until some time in July, 1895, such delay was explained by the plaintiff’s testimony that the work on the main building was completed by August 18, 1894, which was within the time fixed by the contract; and the.extaff of the work done up to that time is nowhere contradicted. This work on the main building did not extend beyond the window sills of the second story, and the failure until a much later day-to place the foundations for the stoop, and the defendant’s failure to have sufficient brick or terra cotta on hand, in connection with other portions of the building which had been placed before the plaintiff proceeded with his work, were among the reasons assigned for the delay in fully completing; There was also evidence tending to show that when a sufficient amount of material had been procured by the defendant and the building was ready for the plaintiff’s work, the weather was so inclement that he could not proceed with it. ' The question as to whether the delay was solely attributable to the plaintiff or to the defendant was, like nearly every other question in the case, upon conflicting evidence, reduced to one of fact. The same may he said with regard to the claim advanced that the plaintiff’s work was imperfect and the material furnished poor, and as to the insufficiency of workmen. These' latter, however, were all subsidiary to the main questions as to whether there there was a performance of the contract by the plaintiff, and as to the extent to which the defendant was damaged as the result of any of the plaintiff’s omissions fully to complete. The appellant insists that the direct damage, consisting of the cost of making good defective work, and doing omitted work, was $709, to which should be added the cost of a marble tablet, $80, and the loss of interest on payments earned by the defendant, but withheld as the result, as claimed, of the plaintiff’s delay. The learned trial judge did not, upon this question of fact, decide it in the defendant’s favor, and, as we have already intimated, as it was a question of fact upon conflicting evidence, we should not interfere with it, and, therefore, this item may be disregarded. With respect to the item of $709, the payment made to Algie for making good defective work, it would appear that included in this was the cost of replacing a stone which was cracked by the settling of the building, and as this, therefore, was not the result of any fault of the plaintiff, the trial judge properly disallowed it. So, also, there was a question as to how much of the work done by Algie, which seemingly included the brushing and pointing of the whole front of the building, and not merely the stone work, was chargeable against the plaintiff. The trial judge-reached the conclusion that $317 would be a reasonable allowance to make on a contract for work amounting to $17,393, which is a" seeming answer to the appellant’s main contention that the plaintiff-failed substantially to perform his contract.

Upon a review of the evidence, we do not think that we should be justified in disturbing the decision of the court below, and the judgment should accordingly be affirmed, with costs.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented.

Judgment affirmed, with, costs.