Porter v. . Spence

38 N.Y. 119, 6 Trans. App. 44

• Court: New York Court of Appeals
• Decided: March 5, 1868
• Status: Published

Opinions

Bacon, J.

As the case is made up it is doubtful whether any question is presented to this Court arising out of the report of-the referee.

The case contains no finding of facts and conclusions of law separate from the report, as the well-settled rule of this Court requires ; nor is the report made any part of the judgment-record which coinés up for review. The report itself contains but one or two findings of fact, &c.; the remainder consists of an argument or opinion, giving a construction to the terms of the contract .of the Defendant with Bonnell, and vindicating the interpretation the referee put upon it.

There are exceptions to the findings of fact, but these we do not review, especially as there was no countervailing evidence on the part of the Defendant. If the facts are right, as we assume them to be, the conclusion is inevitable that the Plaintiffs were entitled to recover. Services were rendered by the Plaintiffs, and materials furnished by them, at the request of the Defendant, and applied and used for his benefit, and the law implies a promise, to which the referee has given effect by finding in favor of the Plaintiffs for a sum considerably less than the amount claimed by them. There is, in truth, but a single exception which is presented in such shape as to allow a review in this Court. Included in the report in favor of the Plaintiffs is the sum of $154.16, which is the amount of a bill for shelf hardware or ironmongery, furnished by the Plaintiffs, and used upon the building. The ground of exception to the finding in respect to this item is stated to be, that by the terms of the contract with Bonnell, the whole ironmongery for thé house was to be furnished by Bonnell, and was included in the gross sum that he was to be paid for the entire work.

The same exception was taken in the course of the trial, and arises upon the terms and construction of the contract between the Defendant and Bonnell. The contract and specifications between these parties were' put in evidence, and in the latter occurs this provision : “ Ironmongery and all plumber "work to be furnished by the owner [the Defendant], as also speaking-tubes, bells, gas and heating apparatus.” This, standing alone, would seem to impose upon the Defendant the duty of furnishing and paying for the articles spécified; but at the end of the articles there is appended a clause in the following words: “It is understood that all ironmongery," &c.,-excepted in foresaid specifications, are to be executed by said N. Bonnell [the builder], and as follows: 1st, for iron railings and anchors, $120; 2d, plumber work, $200; 3d, marble mantels and grates, $200 ; and included in the aforesaid sum of $5,200.” The construction put upon, this clause by the referee* was, that the articles therein specified, and no others, were to be included in the compensation of $5,200 provided for the entire work; that, consequently, the items which proved the charge -of $154.16, allowed by him* to the Plaintiffs, were not within the contract, and they were justly entitled to recover them. Although the clause is not very artificially expressed, I think the meaning is obvious, and that the referee gave it the true construction. Taking the whole together, it provides that the particular things specified and sum mentioned shall be included in the compensation to be paid to the builder. The contract had specified what the owner was to furnish, and these articles which were provided and paid for by the Plaintiffs were included within the general designation of ironmongery, &c., and could only be excepted by a provision equally explicit elsewhere. The clause at the end of the specification is not only susceptible of the construction put upon it by the referee, but to give it any other would be to violate its plain import. The offer made upon the trial to show a reason from which it might be assumed that the Defendant desired to furnish these articles himself, under his contract with Bonnell, was an attempt by inference to put another construction upon the W'riting, in plain violation of the rule that a written contract cannot be varied by parol, and was properly rejected by the referee.

The judgment should be affirmed.