
    Barnett Aronson, Respondent, v. Herman Wertheim, Appellant.
    (Supreme Court, Appellate Term,
    October, 1897.)
    Contract — Construction — Acts of parties and circumstances.
    Where the main issue in an action is whether a written contract, for the mason work of four houses, covered the placing of stone slabs in the water-closets of one of them, situated on a corner, the plans for which were filed under a new and more stringent building law from that governing the others, the court may, in solving the doubt, consider the situation and relation of the parties, their acts, the subject-matter and the surrounding circumstances.
    
      Appeal by defendant from judgment of the Fifth District Court.
    L. S. Finn, for appellant.
    M. B. Blumenthal, for respondent.
   McAdam, J.

The defendant employed the plaintiff under a written contract made August 22, 1896, whereby the latter agreed to do all the fire-proofing and all the mason work to finish up the four houses, Eos. 230, 232, 234 and 236 Cherry street for $275, to be paid as follows: “ When all fire-proofing and door sills are set, $60; When all window sills are filled inside and outside, $40; when all arches are in the staircase, $100; when all the work is completed, $75..” ' : -I-;:;;

The plaintiff testified that after he had completed the work under this contract, and about September 18, 1896, he had a conversation with the defendant in reference to the setting of five stone slabs in the water-closets of Eo. 230 Oherry street, the comer house; that the defendant told him to go ahead'with the work, and he would pay whatever the plaintiff charged for it. The plaintiff conceded that setting the slabs was mason work, but testified in effect that it was never contemplated by his written contract that he should do that work, that it had never before that time been called to his attention, and that the slabs were put in after he had completed the written contract and been paid in' full by the defendant therefor. The plaintiff also testified that just prior to the time when he made the arrangement with the defendant about slabs, an inspector from the building department called at the corner house and directed the defendant to put the slabs in, as they were required by the department. The defendant was interrogated in regard to this feature of the case, and apparently declined to contradict the plaintiff, for all he seemed willing to say on the subject was that he did not remember.-

The circumstances seem to confirm the theory that neither party contemplated that the plaintiff should put the slabs in the closets, and that had it not been for the building department the plaintiff’s first contract, "would have been deemed satisfactorily performed without that item.

The defendant Was to furnish the material for the work, and the slabs were not supplied until after he paid the plaintiff for the work under the written contract. If the defendant had expected the' plaintiff to put in the slabs he would naturally have furnished them in time that that work might have progressed with the other work, and the final payment be taken to have applied to the entire jobi The plaintiff certainly finished all he supposed he had contracted to do before the slabs came and the contract price had been satisfied^ and the putting, in of the slabs was evidently an independent arrangement, as the plaintiff testifies.

The defendant when he paid the plaintiff did not complain that •the slabs were not in or that the plaintiff was bound to put them in, and the fact that the defendant had not procured them then would indicate that he did not expect them to go in.

The written contract does not refer in any manner to plans and specifications, nor was it proved by the defendant that any such had been shown to the plaintiff at the time the contract was made or at any time during the progress of the work.

The defendant testified that he bought three of the lots, with plans and specifications, some time in 1894, and that the plans for the comer house were filed by him in 1895 under the' new law, which required slate floors in the water-closets. This1 circumstance, to which the attention of the plaintiff had "never been called, obviated the using of slabs for the three inside houses, but required them for the comer house. This special reason for putting slabs in that house should have been brought to the attention of the plaintiff in some manner, and he might reasonably assume that as they were not needed in the other three houses they would not be required in the comer house. At all events the parties by their acts placed a construction upon the contract which the court below had the right to consider. Woolsey v. Funke, 121 N. Y. 87; Nicoll v. Sands, 131 id. 24; Ins. Co. v. Dutcher, 95 U. S. 269, 273; Tilden v. Tilden, 8 App. Div. 103.

' Every contract is to be construed so that it may have effect according to the intention of the parties, if that can be done consistently with the rules of law. Parshall v. E'ggert, 54 E. Y. 18. In interpreting agreements courts will look at the surrounding circumstances, the situation and relations of the parties and the subject-matter of their negotiations (Bank of Montreal v. Becknagel, 109 E. Y. 482), and consider what the parties saw and knew, in order to ascertain their meaning. Clark v. E. Y. L. I. & T. Co., 64 E. Y. 33. The court in determining the rights of the parties availed itself of all these side lights, and came to a conclusion warranted by the proofs. ■

The defendant finally admitted that in September an inspector of the building department came to the three inside; houses and asked, “How is it that there is no slate there? ” to which the defendant replied, “It is.under .the old law.” The plans filed with the building department for the comer house were produced, and these words appeared therein: “ The water-closets to be made tight, all slate.” If the plaintiff had contracted with reference to these plans it is evident that there could be no recovery. If in the other three buildings slate slabs had been required it might be urged that they were required in the corner house as well, ■ But when it appears, as it clearly does, that the slabs were to be omitted in the other three houses, -the plaintiff, having no knowledge to the- contrary, could reasonably have assumed that they were not to- be put in the comer house. It is obvious that both parties supposed this to be so until the building department interfered, and that the independent contract by which the plaintiff was to put the slabs in was made after he had completed the written contract as under-, stood by the parties, and after he had been compensated for such performance.; . •

The justice found, as he well might on the evidence before him and the circumstances stated,- that the defendant did make an independent contract for the putting in of the slabs, and the only question remaining for him to decide was as to the reasonable value of the work. This he fixed at $41.60, and the evidence amply sustains the finding.

We have examined the return in regard, to the defendant’s counterclaim for $55.50 paid to others for the doing of work alleged to have been left undone by the plaintiff. Concerning this, as also in regard to the independent contract, there was a sharp conflict of evidence., The plaintiff testified that'he had completed the written contract before the additional agreement-was made, and that the' defendant in recognition of such performance had paid the contract price, the last installment having been paid as late as September 19, 1896. If the plaintiff fully completed his contract, as he testifies, there was no work left undone which he ought to have done, and consequently no basis for the counterclaim.

The judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  