
    David M. Nesbit and Fred T. Nesbit, Respondents, v. Henry J. Braker, Appellant.
    
      Mechanics Ken —proof that an architects certificate was unreasonably withheld — burden of proof as to the reasonable compensation for defects, where substantial performance only is shown—what is not a substantial performance.
    
    In an action brought to foreclose a mechanic’s lien filed for work done under a building contract, which provided that payment for the work should be made only upon the written certificate of the architect, the plaintiffs, in order to maintain the action, if they have not procured the architect’s certificate, must show, as part of their affirmative case, by a preponderance of proof, not only the refusal by the architect of a demand for the certificate, but also that the certificate was unreasonably withheld.
    Where, although the complaint alleges complete performance of the contract in respect to the furnishing of materials, the plaintiffs seek to recover upon the theory of a substantial performance of the contract in this respect, they must show such substantial performance by a preponderance of proof, and also what would be fair and reasonable compensation for the defects in performance.
    Defects in performance which require an expenditure of from $3,500 to $7,000 to remedy them cannot be called inadvertent, and the existence of such defects is sufficient to show that the contract was not substantially performed. O’Brien and Laughlin, JJ., dissented.
    Appeal by the defendant, Henry J. Braker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the .county of Hew York on the 8th day of August, 1904, upon the decision of the. court, rendered after a trial at the Hew York Special Term, in án áction brought for the foreclosure of a mechanic’s lien. ■ ■ "
    
      James M. Gifford, for the appellant.
    
      Frank M. Avery, for the respondents.
   Hatch, J.:

"By the terms of the contract, pkyment for the .work was only to be made upon the written certificate of the architect; therefore, the ' plaintiffs,, to maintain the action, in the absence of the certificate,' ,were required to show not only a demand and refusal of the architect to deliver the same, but also that it was unreasonably withheld; This being a part of the plaintiffs’ affirmative case, the burden devolved Upon them to establish, such facts, by a preponderance of proof. (Bowery Nat. Bank v. Mayor, 63 N. Y. 336.)

The complaint avers’complete performance of' the contract, save as to the time of completion, which it is averred was delayed by the defendant, and that such condition was also waived. The proof did not' sustain the averment of complete performance in the furnishing. of materials. On the contrary, it satisfactorily appeared that the contract was not specifically performed as to the furnishing of the trim and also of the doors and panels. As to. .the trim, it lias been eliminated'from consideration, and the only matter now before' the court relates to the sum which has been allowed for the doors and panels,-. In tips, regard, the court below was Only able to find from the evidence a substantial performance of the contract, and that the defects, were inadvertent and- not willful. The judgment which has been rendered in favor of the plaintiffs, therefore, must-stand upon this finding and the .right to recover under the finding of substantial performance. Upon this subject the burden of proof rested upon the plaintiffs, to show substantial performance, and they were also-required to show what would be fair and reasonable compensation for the; defects. In Spence v. Ham (163 N. Y. 220) it was said: “ Substantial performance is performance, except as to unsubstantial omissions.” And again : “ Unsubstantial defects may be cured, but at the expense of the contractor, 'not of. the owner. The contractor cannot recover the entire contract price when defects Or omissions, appear, for- he must' show not only that they were unsubstantial and unintentional, but also the amount needed to make them good, so that it can be deducted from the' contract price and a recovery had for the balance only. This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance.” And further, the court said : “ When the plaintiff shows that he performed his contract he is entitled to judgment for the contract price; but when he shows that he performed his contract except that through inadvertence he omitted to do some unsubstantial things, he is not entitled to recover anything until he shows that the things omitted, if worthy of any attention whatever, can be supplied for a comparatively small sum, in which event he can recover the contract price after deducting that sum. This rule is liberal to the' contractor, for it allows him to recover when he has not fully performed, and it cannot . be extended without danger to the integrity of the contract. As he does not show full performance, it is not requiring too much of him to show what it will cost to remedy the defects in order to permit him to recover the contract price less the sum allowed for defective performance. It is for him to show this, for otherwise the owner could say, 1 am I to pay according to my promise when the contractor does not perform according to his ? ’ The one who fails in fully performing and who invokes the doctrine of substantial performance, must furnish the evidence to measure the compensation for the defects, as that is the substitute for his failure to do as he agreed.”

Comment could not make plainer the rules of law governing this case in considering the findings of the court and the basis of its decision as appears in such findings and its expressed reasons therefor. The court having refused, to find actual performance of the contract, the burden rested upon the plaintiffs to make out their cause of action. The language of the finding in respect to the fulfillment of the contract for the furnishing of the doors and panels is that the defendant failed to show that there was any latent defect in the doors wlifen delivered.” In the finding respecting the trim, the language of the court is, and that defendant failed to prove the remaining counterclaims set forth in the answer.” Reference to-the answer shows that the pleader averred the facts constituting a defense by way of showing that the contract had not been fulfilled. ■ The counterclaim in that connection consists of a claim to recover for the cost of replacing the defective material thus furnished, and the answer in terms pleads it both as a defense and a counterclaim. It seems-to be evident, therefore, that the court disposed of the^ease upon the, theory that the burden of proof was upon the defendant to establish that the plaintiff's had not fulfilled théir contract, .thus reversing the rule and adopting an erroneous one. A reference to - the opinion of the learned court also shows the same' erroneous view. Jt says : “ I do not think that the defendant has successfully shown that the blame and los^ should fall upon the plaintiffs.’- And again : “On the whole, I do not think that defendant xhas1 shown that the doors were improperly constructed or were imperfect when delivered.” It is, therefore, apparent- that the court devolved the burden of showing the non-perforinance of the contract upon the defendant, whereas the law devolved it upon the plaintiffs. And this reason is quite sufficient to call for a reversal of the judgment,

, In addition to this, it was clearly made to appear that the failure to furnish proper and suitable doors would entail a cost in replacing the same of a considerable amount, the proof on the part of' the plaintiffs tending to show that such cost would be in the neighborhood of $3,500, and upon the part of the defendant that it would cost something over $7,000. ■ Defects in work cannot be called inadvertent which re'quire such a sum to make it good. (Van Clief v. Van Vechten, 130 N. Y. 571; Mitchell v. Williams, 80 App. Div. 527.) This disparity is sufficient to show that the contract was not substantially performed.

If, however, as. is claimed, the findings can be construed as findings of complete performance, I am of opinion that they are overthrown by the clear Weight of evidence. That alb of the doors and panels split and will be required to be removed in order to make the rooms respectable in appearance is -undisputed. None of' them were free from tliése defects, and the manner in which they cracked and split was uniform upon all the floors and in all the rooms where they were used. The defects being open and apparent, the -issue presented' to' the court was, -what created the force which operated • to produce the result and who was responsible therefor ? Evidence was given upon the part of the defendant tending to show that the defect was in the failure to put into the doors and panels material fully kiln dried, and that the failure in this regard caused the interior wood to contract, and thus to- crack the panels and produce the other results. Evidence was also given tending to show that the doors were improperly glued and the material improperly placed. Upon the part of the plaintiffs, evidence was given tending to show that the doors when delivered were in good condition and complied with the terms of the contract, and the court so found; that the subsequent condition was produced by exposing them to dampness and, after being hung in the building, to intense heat; that by this process they absorbed moisture, and the heat caused contraction, which produced these' results..

. The only claim of moisture rested in proof of the laying of the mosaic and tesselated floor, wherein it was claimed that considerable water was used, and that during that process the doors absorbed the moisture. It appeared, however, from the testimony of the men in the building who laid the floor, that but a small quantity of water was applied thereto, about as much as would be necessary to be applied in scrubbing a'floor; and the court was of opinion as a final conclusion that dampness was to be inferred from the fact “ tliat the defendant found it necessary to put steam heat on during the hot months of August and September; ” that this would scarcely have been done had not the building been damp. It did not appear how hot it was in either of these two months in that year; and the evidence of the architect who caused the steam to be turned on is that it was in September. Ho other cause or reason'was assigned by the plaintiffs or by any one else than that the condition of the doors was produced by this dampness and by the heat applied. A record was kept, when the doors were -delivered, of the quantities that came and the number of workmen then employed about the building that were engaged in putting them up ; and so far as specific proof went upon this subject, the testimony fairly establishes that the doors were put in place almost immediately-after delivery. That the claimed dampness made but slight impression upon the court is apparent from its remarks near the'close of the proof, which expression of opinion evidently stopped further inquiry into this subject. The court said: “ I don’t' think there is anything in this question of dampness; the doors have been in that building long enough, if they were reasonably good doors, to stand it.” Ho . further proof was adduced upon this subject after this deliverance, by the court. Consequently, we are not able exactly to determine what consideration's induced the court to take a different view, aside from the suggestion of the turning on of the steam in August, which appears not to have been done.

Aside from mere oral proof, however, stand certain physical conditions which are much more important and satisfactory in the establishment of facts than oral statements .can possibly be.. All of these doors cracked and checked and otherwise fell apart iii a uniform manner. There was no difference in- them, save in slight degree. It is an affront 'to common sense to conclude upon- such facts that each door absorbed the same amount of moisture at the same time, and was subjected to. the same amount of heat at the same time; and yet such must be the conclusion if we attribute the condition of these doors to the absorption of moisture and the application of heat. The fact that they all cracked- alike is controlling evidence that the same infirmity practically existed in each door, and this result could only be obtained by the same kind of a defect in each. Manifestly, such condition could not be produced by the accidental absorption of moisture. Some of the doors had not even been placed where dampness could be absorbed, assuming that others might have been exposed thereto. The action of heat and moisture accidentally received or applied does not manifest itself in this uniform way. So that not only does the oral testimony in this case predominate in favor of the defendant’.s contention, but the physical condition's are conclusive of it. And when this is coupled with the fact that the burden of showing performance of the contract rested upon the plaintiffs, and that substantial performance only was found by the cqurt, it is clear that the plaintiffs failed to establish ' e • •$, 1 facts authorizing a recover} lor the doors and panels.

It follows-that the judgr'^ fit should be. reversed and a new trial , granted, with costs to the ¡ ipellant to abide the event.

"Van Brunt, P. J., and tg-raham, J., concurred; O’Brien and Laughlin, JJ., dissented.

O’Brien, J. (dissenting):

This is an action to foreclose a mechanic’s lien. The complaint alleged that á balance of 2,971.60 was due the plaintiffs under a contract for furnishing the interior woodwork of defendant’s house. The answer denied performance upon the part of the plaintiffs, alleged that the contract was procured hy fraud, and set up five counterclaims. At the trial the defense of fraud w,as apparently abandoned, two of the’counterclaims were admitted by the plaintiffs, and the third was allowed by the court for the full amount claimed. Judgment was rendered in favor of the plaintiffs for $1,718.50 together with interest, that being the amount demanded in the complaint, less the three counterclaims established. From that judgment the defendant appeals, and the only questions to be • determined by us relate as conceded in appellant’s brief to the decision of the court in refusing to- allow the defendant one of the remaining counterclaims which is designated as the third.

The allegations of the complaint are that the “ plaintiffs fully complied with all the terms and conditions of said contract on their part, and fully furnished and delivered all the materials thereunder required to be by them furnished and delivered,” and that the “ defendant ratified any departure, from the contract of these plaintiffs that occurred, if any,, and waived any claim that existed or might exist by reason of variances between the specifications and plans and contract, and the materials furnished by plaintiffs.” The contract provided that all -the lumber to be used should “be thoroughly kiln dried according to drawings and specifications made by ” the architect, and that the work should be done “ in a first class manner.”

The allegations of the answer in setting up the third counterclaim are to the effect that the woodwork furnished by the plaintiffs was not properly kiln dried, and that the “work of drying, preparing, gluing and putting together said woodwork was not done in a first class manner as in and by said contract agreed, but on the contrary said work was done in such, a negligent, careless and unworkmanlike manner, that after said woodwork had been delivered and placed in the building named in said Contract, the wood in the doors furnished under said contract separated, Cracked and warped, and the rails of .said doors separated from the stiles, so that said doors failed to retain their proper- position in said building, and have thereby become and áre worthless and not at all fit for the purposes for which they were designed.” It is further alleged that upon discovering’ such defects the defendant notified the plaintiffs that the doors were not according to contract and demanded- that -they should be replaced with new. doors; that the plaintiffs had failed to remedy the defects; and that defendant would be obliged to replace said doors ■ at his own expense, which Was estimated at over $8,000, and this' amounf he sought to counterclaim. - , 1

It will be observed that by these allegations the defendant merely denies that the plaintiffs performed then; part of the contract in '■ relation to the 'doors which they had furnished.

Upon the trial it was established that over five hundred doors were .' supplied by the plaintiffs under their contract. Each of- these doors had four panels; the lower two being of solid birch, the upper two made of five layers of wood ; the interior core of pine about three-eighths of. an inch thick with the, grain running crosswise ; to each side of this was affixed a layer .of white wood about one-eighth of an. inch thick with the grain running from the top to the bottom of the panel; and on the outside of these -layers was a birch veneeri from one thirty-second to oñe-sixteenth of an inch thick with the grain running from top to bottom. Ho evidence was introduced tending to show that the. general plan of construction as above described was not in conformity with the requirements of the drawings and plans of the architect, and as these plans are riot before US we must assume that the learned trial judge is correct in finding, as he did, that in adopting this-plan of construction the plaintiffs conformed to the contract. The doors were apparently all right when they were received from the plaintiffs and when they were . subsequently hung by the defendant in the building; but after they had been in place for some months the upper panels began to check and crack and the frames to shrink. These defects continued^ to increase in size and number until finally the condition of -the . doors became so bad that, as defendant contends, they were practically unfit for use. . -' -

The defective condition of the doors was admitted, the disputed' question upon the trial being as to the cause of it. The. plaintiffs contended that the'imperfections, which.did not appear 'until some months after-the doors had been placed in the. building, were, not caused by any defect in material or workmanship, but resulted from the negligence of, the defendant, in subjecting the doors, after they came into his possession, to alternate dampness and great heat, causing the wood to swell and then suddenly contract, thus cracking and checking the veneer. The defendant, on the other hand, contended that the cracking was caused by the failure of the plaintiffs to use wood that had been properly kiln dried and by improper workmanship in fastening the different layers of wood together.

Evidence was offered by each party which tended to support their respective claims. From the testimony of plaintiffs’ witnesses it appeared that after the doors had been delivered to the defendant they were left by him for a time in a portion of the building which was damp on account of mosaic tile work and plastering being done there, and after they had been exposed to this dampness they were hung in their respective places and then subjected to extreme heat when the steam was turned on in the building to dry it out. Witnesses qualified as experts were called by the plaintiffs, who testified that in their opinion the defects in the doors were caused by their being thus subjected alternately to moisture and to heat; and the plaintiffs’ superintendent, under whose supervision the work under this contract was performed, testified that it was a first class job,” and that the wood psed was thoroughly kiln dried.

The experts called by the defendant had, as we might expect, a different opinion as to the cause of the defects. They testified that the interior layers of wood in the panels had been improperly kiln dried; that the method adopted by the plaintiffs of gluing and pressing together at one time all five layers of wood was not first class workmanship, but that the proper way of manufacturing doors of this kind was to glue and press the three interior layers first, and permit them to thoroughly dry out before gluing on the two outside layers of veneer; also, that it was not first class workmanship to have the grain of the outside veneer run in the same direction as that of the wood immediately beneath. They testified that in their opinion the cracks and checks were caused by the improperly dried wood used, and by the improper workmanship as above mentioned. This conflicting testimony presented a question of fact for the trial court to determine, and he states the situation in his opinion as follows: “ The evidence is clear that the doors appeared to be all right when delivered, and there is positive affirmative they carefully constructed, strict conformity. with the requirements of the contract. , The theory that the panels split' and shrunk because the wood had not been properly kiln dried has no positive evidence to support it. and rests wholly upon conjecture and the attempted reasoning of experts from effect to cause. The result of their evidence is that the defects ■ which first disclosed themselve^ in December, about four months "-.after the doors were delivered, might and 'probably would have resulted from a lack of proper kiln drying before manufacture. But it also appeared that the same defects might be found if the doors had been properly constructed in the first' place, and. after ■delivery subjected .to altérnate dampness and great heat. There was some evidence to show that they had been so subjected. The ' defendant undoubtedly sought to show that there was ho consider-‘ able dampness in the bnildipg at thq time of and after the delivery, but" it is.significant, that the defendant found it necessary^ to put . steam heat on during the hot months of August and September, which he would, scarcely have done unless the interior of the building had been pretty damp.”

' We think this correctly summarizes the situation at the close of the’Case, and 'the conclusion reached by the court, that the evidence sh.qw.ed a substantial performance by the plaintiffs, cannot be disturbed, by us unless it can. be seen that .in reaching that conclusion the court found against the weight of evidence or proceeded upon an erroneous theory as to-the burden of proof. As already pointed out, the plaintiffs based their right to recover upon the theory that they had either.Wholly or substantially performed their part- of the contract; the evidence shows that there Was not a full performance. . This is not claimed by the plaintiffs upon the present appeal,, and the court has based its.decision not upon a-full, but upon a substan- ' tial -performance.- As said in the case of Spence v. Ham (163 N. Y. 220, 225): Substantial .performance is performance, except as- to unsubstantial omissions - with compensation therefor. When the omission is slight and unintentional in order to prevent the hardship 1 of a failure to recover even for that which was well done, co'rapen- ’ - sation is substituted pro tanto for performance. This is the modern rule adopted upon the theory that the parties are presumed to have impliedly agreed- to do what was reasonable nnde.r all the circurnstances with (reference to the subject of performance.” But the burden of. showing that the omissions, if any there be, were immaterial, rests upon the plaintiff. Not only must he establish this before he can recover, but according to the case last cited, he must also show the amount which it would cost to make the omissions good, so that such sum can be deducted from the contract price ai/d á recovery had for the balance only.

. In the present case, therefore, before the plaintiffs’ cause of action was established it was necessary for them to show at least that the wood used in the doors was properly kiln dried as required by the contract, and that the work was done in a first class manner. The burden of proving these things rested upon them, and it seems to us that a fair reading of the judge’s findings shows that he required -the plaintiffs to bear this burden. These findings in so far as they relate.to this subject are as follows:

“ V. That plaintiffs substantially performed their said contract: and that'the defects in the materials furnished were inadvertent and: not wilful on the part of the plaintiffs.”

“XIV. That the doors furnished by plaintiffs were according to contract when delivered, and were carefully constructed in conformity to the requirements of the contract, and that the defendant failed to show that there was any latent defect in the doors when delivered.

“ XV. That the weight of evidence in this action sustains the contentions of the plaintiffs as to the matters of fad hereinbefore found in their favor.”

The appellant contends that from the last clause of the 14th finding above quoted, to wit, “that the defendant'failed to show, that there was any latent defect in the doors when delivered,” it appears that the court placed upon the defendant, instead of upon the plaintiffs, the burden of proving that improper materials were used and that the work was not first class. We do not think that taking the finding as a whole it is susceptible of such interpretation. The finding is that the doors were carefully constructed in conformity to the requirements of the contract; that is, that the wood was properly kiln dried and the work was first class. The succeeding finding is that the weight of evidence sustains the contention of the plaintiffs as to that and other questions of fact. This, we think, clearly shows .that the court regarded it as essential that-the-,plain tiffs should sustain the bintden of proving a compliance-with the contract in the particulars mentioned, and that he found that they had sustained that burden. - For us to determine otherwise, we would have to take the particular clause criticised away from its context, and by reading it alone, give to it a meaning in^conflict with the.findings as a whole. As already said, we think the findings show that the -court proceeded upon :a proper theory, as to the burden of proof, by placing' that burden upon the plaintiffs,- and that his judgment as rendered is not- against the weight of evidence. I do not. agree, therefore, with the views expressed by the majority of the court, thinking, as I do, -that, the' judgment should be afñrméd, with -costs. ' ■

Laughlin, J., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.  