
    (82 Hun, 158.)
    MURPHY et al. v. STICKLEY-SIMONDS CO.
    (Supreme Court, General Term, Fourth Department.
    December 7, 1894.)
    1. Contracts—Performance.
    Whether a contract has been substantially performed is a question of fact.
    2. Same—Waiver of Nonperformance.
    Defendant cannot take advantage of the failure of plaintiff to perform the contract within the stipulated time, where the failure was due to a delay caused by defendant.
    8. Same—Substantial Performance.
    A finding that the contract was substantially performed is not inconsistent with a finding of defects in the work which amounted only to 6 per cent, of the contract price.
    Appeal from judgment on report of referee.
    Action by David Murphy and John W. Gee against the Stickley-Simonds Company and others to foreclose a mechanic’s lien. The referee awarded damages for the balance due on the contract, and also $450 for extra work performed and materials furnished to defendant, finding a total amount in favor of plaintiffs of $5,416.66. Defendant the Stickley-Simonds Company appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Hoyt & Farrington, for appellant.
    Stone, Gannon & Petit, for respondents.
   HARDIN, P. J.

Plaintiffs, copartners and contractors, on the 4th day of May, 1892, entered into a contract with the Stickley-Simonds Company, of the city of Auburn, to furnish materials necessary to the erection and completion of all work according to plans and specifications prepared by an architect for the erection of a factory building at Eastwood Heights, near the easterly limits of the city of Syracuse, and the defendant stipulated to pay therefor the sum of $22,000, payments to be made “during the progress of the work upon the estimate of the architect.” The owner reserved “the privilege of changing any part of the labor or materials without in any way invalidating the contract.” The contract contained a provision, viz.:

“All questions arising under this contract, as far as labor, materials, etc., may be concerned, shall be decided by the architect, and his decision shall be binding and final.”

It was provided in the specifications, viz.:

“The proprietor shall have the right to make any alterations, additions, or omissions of work or materials herein specified or shown on the plans, during the progress of the work, that he may find necessary, and the same shall be acceded to by the contractor or contractors, and carried into effect without in anyway violating or vitiating the contract.”

It was further provided in the specifications, viz.:

“The architect and proprietors shall have full power, at any time during the progress of the work, to reject any materials that they may deem unsuitable for the purposes for which they are intended, or which are not in strict conformity with the spirit of these specifications.”

On the ,10th of October, 1892, the architect, having made an inspection of the factory building, certified that the contractors have “satisfactorily completed their contract for carpenter work on the same, and are entitled to the balance of money due by the terms of the contract.” On the 10th of October, 1892, the contractors verified a claim and notice of a lien, and filed the same with the clerk of Onondaga county, in which they claim the principal sum of $8,723.40, and interest from the 10t,h of October, 1892, “for the price and value of such labor and service and materials upon such house, building, or factory and appurtenances, and upon the lot, premises, parcel, and farm of land upon which the same stands.” Prior to the filing of the lien, several payments had been made upon the contract, and the next day after the same was filed, to wit, on October 11,1892, the further payment of $2,250 was made on the contract, and on the 9th of January, 1893, this action wras commenced to foreclose the mechanic’s lien, and the amended complaint asked to recover the balance of $6,-543.40, and $600 for extra work. The defendants answered, admitting the execution of the contract, and alleged its nonperformance, and set up certain defects and counterclaimed therefor. The referee found, as matter of fact, viz.:

“The plaintiffs, under and pursuant to the terms of said contract, substantially performed the work and furnished the materials called for by said plans and specifications for the erection of said factory building, and substantially complied with said contract.”

That finding is challenged by the appellant. Upon the hearing, extensive evidence was given upon the question involved in the finding in behalf of the plaintiffs, and evidence tending to the contrary was offered by the appellant. We are of the opinion that the finding made by the referee is not against the weight of evidence, and that his conclusion upon the whole evidence in that regard should be accepted. It is now well settled that whether there xvas a substantial performance or not is a question of fact to be determined upon all the evidence and circumstances relating thereto. Phillip v. Gallant, 62 N. Y. 257; Glacius v. Black, 50 N. Y. 145; Nolan v. Whitney, 88 N. Y. 648; Lewis v. Yagel, 77 Hun, 337, 28 N. Y. Supp. 833. And it has been held in numerous cases that a substantial performance of a building contract is sufficient to sustain the right, of a lien. Wright v. Roberts, 43 Hun, 413; Van Clief v. Van Vechten, 48 Hun, 304, 1 N. Y. Supp. 99; Hollister v. Mott (Sup.) 10 N. Y. Supp. 409; Heckman v. Pinkney, 81 N. Y. 211; Lewis v. Yagel, 77 Hun, 337, 28 N. Y. Supp. 883; Van Clief v. Van Vechten, 130 N. Y. 579, 29 N. E. 1017. In Van Clief v. Van Vechten, supra, Vann, J., said:

“The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the-contract, and has succeeded except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission.” See page 579, 130 N. Y., and page 1017, 29 N. E.

It is contended in behalf of the appellant that the plaintiffs willfully refused and neglected to perform the contract according to the plans and specifications. Upon looking into the evidence before the referee, we are of the opinion that it does not sustain the contention of the appellant, but, on the contrary, it warrants the conclusion that the defects and deficiencies for which the referee awarded damages to the appellant did not accrue by reason of any intentional or willful purpose on the part of the contractors. Van Clief v. Van Vechten, 130 N. Y. 571-579, 29 N. E. 1017; Lewis v. Yagel, supra. Although the contract was not completed within the time specified, there was evidence warranting a finding that the failure was due to the delay which the defendant caused, and therefore such failure to complete does not preirent a recovery. Beinhauer v. Gleason, 15 N. Y. St. Rep. 227, affirmed 119 N. Y. 658, 23 N. E. 1150; Close v. Clark (Com. Pl. N. Y.) 9 N. Y. Supp. 538. It seems the defendant failed to procure a switch from the railroad company, so that the materials could be brought to the location of the building, and the defendant caused some delay by failure to get machinery in the building; and the evidence discloses sufficient basis for a finding that the defendant waived the stipulation in the contract in regard to the time of completion of the contract. Smith v. Alker, 102 N. Y. 87, 5 N. E. 791. The referee specifies several minor defects and deficiencies which were disclosed by the evidence, and allows damages to the defendant in such sums as he deemed, upon the evidence, sufficient to remedy the defects and deficiencies. He found that it was worth only $150 to repair and properly set the window frames and sash in the building according to contract and specifications. It is contended, in behalf of the appellant, that the allowance is not sufficient, and that there was no other evidence than that given by Miles T. Gardenier, a witness who was called in behalf of the defendant, and who, upon that subject, said: “It would be worth between $400 and $500. In order to put these windows and frames in a proper condition, the-frames would have to be taken out, fixed, and reset, and the sash refitted.” The contention of the appellant in that regard cannot prevail. Colton, the architect, in the course of his cross-examination, testified: “I will swear positively those windows could be properly constructed or reconstructed, the day I was there, in a half day by the best carpenter or workman”; and he gave other-evidence bearing upon the question of remedying the supposed defects in the windows. Inasmuch as the referee’s finding is upon conflicting evidence, it should prevail. Scattergood v. Wood, 14 Hun, 269; Sinclair v. Tallmadge, 35 Barb. 602; Roosa v. Smith, 17 Hun, 138.

It is contended by the appellant that the findings of the referee are in conflict, inasmuch as, after finding that there was a substantial performance of the contract, he has found several minor defects, and awarded damages therefor. It appears, however, that the contract price for the building was $22,000, and that the amount of damages which were allowed for the defects or deficiencies amounted to only about 6 per cent, of the original contract price; and we think the referee kept within the rule which provides that where there has been a substantial performance of the contract, and there are minor defects and deficiencies which can be compensated in damages, a recovery should be allowed for the amount justly and equitably found due to the contractors.

Appellant contends that the lien filed is invalid, and contends that the plaintiffs well knew, at the time it was filed, that they had not actually completed all the work and furnished all the materials called for by their contract. The assumption of the appellant is contrary to the evidence offered by the plaintiffs, and the appellant invites our attention to Foster v. Schneider, 50 Hun, 151, 2 N. Y. Supp. 875, which differs quite essentially from the case before us. There a plumbing contract had been made in respect to three houses, and, when the lien was filed, confessedly a large portion of the work had not been performed. The contract price was $2,400, and. the referee found that the sum of $860 for services and materials would be required to complete the contract, and that on one of the houses it would require $330. And in Close v. Clark (Com. Pl. N. Y.) 9 N. Y. Supp. 538, it was said, viz.: “Confessedly, they [the contractors] had not attempted to provide several things called for by the contract”; and reference was made to Foster v. Schneider, supra, and the notice was held to be insufficient. We think that case differs from the one in hand, as here the plaintiffs, according to the findings, had substantially performed all the work and furnished all of the materials to complete their contract, and in good faith intended to complete the same, although it appears from the evidence there were subsequently found some defects and deficiencies for which compensation has been allowed by the referee. Besides, there is some evidence in the case tending to show that the building had been accepted, and that the defendant had waived any defects; and as bearing upon that view of the case is the circumstance that, after the lien was filed, the defendant voluntarily paid $2,250 towards liquidation of its liability upon the contract as a completed contract.

2. We think that the defendant was not prejudiced by the refusal of the referee to take the opinion of the witness as to how far it was necessary to remove the benches to avoid the dampness coming into the windows. The fact was received that the snow comes in, and that dampness occurred by reason of the defects in the windows. We think the referee was sufficiently liberal in taking the facts relating to that subject.

3. Nor do we think it was prejudicial error for the referee to allow, in the exercise of his discretion, the liberal latitude in the cross-examination of the witness Gardenier, with a view of affecting his credibility.

4. Nor do we think it was error to allow the witness Gee to state the experience he had had in the construction of buildings, with a view of qualifying him to speak upon the various questions upon which he was examined. In Close v. Clark (Com. Pl. N. Y.) 9 N. Y. Supp. 538, which was an action to foreclose a mechanic’s lien, the court observed: “This is an action in equity, and the court would therefore use every effort to do substantial justice between the parties.” The learned referee has exercised his sound judgment upon the sundry questions presented to him on the trial, and we are inclined to the opinion that his conclusion is in accordance with the rules of law, and in furtherance of justice and equity. Judgment affirmed, with costs. All concur.  