Schauffelee v. Greenberg

82 A. 921, 82 N.J.L. 343, 1912 N.J. Sup. Ct. LEXIS 141

• Court: Supreme Court of New Jersey
• Decided: March 8, 1912
• Status: Published

Opinion

The opinion of the court was delivered by

Minturn, J.

The suit was instituted in the Camden District Court to recover for material furnished and services rendered by the plaintiff to the defendant in the construction of a- building in the city of Camden.

The contract provided that all work was to be passed upon by the Philadelphia Suburban Underwriters’ Association, which should certify to the completion of the same as a condition precedent to payment.

No question was made at the trial of the cause as to the performance, of his contract by the plaintiff in so far as the actual completion of the manual labor- and the furnishing of the materials as called for in the contract were concerned. The plaintiff proved these facts.

Payment was resisted solely upon the ground that the plaintiff had not furnished to the defendant the certificate from the underwriters’ association, as required by his contract.

As to that requirement, it was in evidence that he had applied to the underwriters’ association for the certificate, but was unable to obtain it because of the failure of the defendant to perform certain electric lighting work which he had undertaken personally to perform in accordance with the requirements of the underwriters’ association. It thus appeared that the certificate was refused, not for any want of compliance by the plaintiff with the terms of his contract, but that the defendant’s failure to perform his undertaking rendered performance by the plaintiff in this respect impossible.

Under such circumstances the defendant is estopped to allege the breach of a condition which his action or inaction has caused. Updike v. TenBroeck, 3 Vroom 105.

The plaintiff’s ease shoAved a substantial performance of the contract, for which he is entitled to recover. Hinds v. Henry, 7 Vroom 328.

In so far as lie was unable to show a literal performance of the contract it is clear that Ms inability to do so was caused by the defendant’s act, which the latter cannot now interpose as a defence to a claim in every other respect just and complete as measured by the contract requirements.

The judgment of the Camden District Court will he affirmed.