Drake v. O'Donnell

49 How. Pr. 25

• Court: New York Supreme Court
• Decided: April 15, 1875
• Status: Published

Opinion

Hardin, J.

The contract-price for building a house for O’Donnell was $1,480, and the proofs show that payments were made to the carpenter, in amount $1,050. The finding of the jury to the fourth question shows that $1;250 had been earned before the plaintiff’s lien had been filed. If the payments then made of $1,050 are deducted from the amount earned, a balance of $200 is found. The learned counsel for the defendant 'is entirely correct in saying that it must appear there was actually due and owing from the owner, to the ' original contractor, upon his contract, a greater sum than the amount of the lien claimed (Smith agt. Coe, 2 Hilt., 365; Lumbard agt. Syracuse & B. R. R. Co., 55 N. Y., 491).

If the $200 before stated is the sum correctly due upon all the facts of the case and the findings of the jury, from O’Donnell to the carpenter, then the plaintiff is entitled to receive out of that sum $184.11, the amount the jury have found as the measure of the plaintiff’s lien.

It is apparent from the findings of the jury that the sum due the plaintiff is less than the balance between the payments and the amount earned.

The question of law that arises upon the findings is: What effect should be given to the third finding of fact ?

The jury say the carpenter was prevented from completing the contract by the act of O’Donnell.

Assuming that such act was committed, and that it had the effect to prevent the carpenter from completing his contract, it would seem to be equitable that the defendant should pay what had actually been earned by the carpenter when he was prevented from carrying out the literal terms of his contract.

If the omission to complete had been voluntary on the part of the carpenter, not caused by the act of the owner, then the carpenter could not recover (Jennings agt. Camp, 13 Johns., 95; 2 S. C., N. Y., 366; 12 Johns., 214).

If the dereliction on the part of the carpenter was found ■to be free of the act of O’Donnell causing it, then the carpenter would not be .entitled to recover (10 Johns., 36 and 13 Johns. R., 96).

Giving full effect to the third finding, the carpenter seems to be excused; or, in other words, the effect of the finding is that the owner, O’Donnell, was not in a situation, in the judgmént of the jury, to insist upon the strict and literal terms of the contract.

This finding and' the view of the case expressed above lead to a result favorable to the plaintiff to the extent of his claim, viz., $184.11.

Judgment is accordingly so ordered, upon condition that the plaintiff serve a copy hereof before entry of judgment upon the attorney for the defendant O’Donnell.