
    Wood Manufacturing and Realty Company of Long Island, Respondent, v. Henry F. Thompson and Others, Appellants, Impleaded with James H. Carroll and Others, Defendants.
    Second Department,
    February 23, 1912.
    Contract — sale — building contract — agreement to furnish materials — abandonment of work by contractor — cancellation of contract — completion by owner — materialman not limited in recovery to contract price.
    Where plaintiff agreed to provide a contractor with the materials necessary for building a cottage for a fixed price, payment to be guaranteed by the owner, and the latter, upon the abandonment of the work by the contractor, canceled his contract with him and notified the plaintiff thereof, at the same time ordering material to be delivered for the completion of the cottage which he himself finished, the plaintiff is entitled to recover from the owner the value of the materials furnished after the cancellation of the building contract and is not limited to the amount named in the agreement with the contractor.
    Inasmuch as the owner never attempted to hold the contractor to the performance of his contract, or to obtain damages from him and inasmuch as he undertook to do the work through his own employees and formally canceled the contract, giving plaintiff notice thereof, he did not complete the work under the contract.
    Appeal by the defendants, Henry F. Thompson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 16th day of December, 1910, upon the decision of the court rendered after a trial at the Nassau Special Term.
    
      James L. Dowsey [Frederick C. Simons with him on the brief], for the appellants.
    
      John P. Everett, for the respondent.
   Woodward, J.:

On or about the 3d day of April, 1909, the defendant Henry F. Thompson entered into a contract with Thomas Bletcher, one of the defendants in this action, wherein Bletcher agreed to provide the materials and perform all of the work necessary in the construction of a cottage to be built at Manhasset, L. I., for the defendant Thompson. The agreed price was $4,751.98. The defendant Bletcher submitted an estimate of the materials necessary for the construction of the cottage to the plaintiff for the purpose of procuring a bid upon the price of such materials, and the plaintiff offered to provide the same at an agreed price of $3,357, the payments to be guaranteed by the owner of the ' premises, the defendant Thompson. The guaranty was given and the plaintiff began the delivery of materials, Bletcher receiving them in behalf of the defendant Thompson, under his contract to construct the cottage. Subsequently, and while the defendant Thompson owed Bletcher between $600 and $700, the latter abandoned the work and the contract was canceled. Thompson then paid the plaintiff $600 on account of the materials furnished to Bletcher, and notified the plaintiff of the cancellation of the contract, at the same time ordering goods to be delivered for the completion of the cottage. Thompson employed Bletcher by the day to complete the job. Later the plaintiff filed a notice of lien, and an action to foreclose the lien resulted in a judgment in favor of the plaintiff for the sum of $1,479.74, from which the defendants Thompson appeal.

The theory of the appellants is that Thompson undertook to complete the work under the contract, and that he is liable only for the amount of money which was involved in the guaranty of the price of the materials to be used under the contract with Bletcher, but we are of the opinion that this position is not tenable. The evidence shows clearly that the contract between Thompson and Bletcher was canceled; that it ceased to have any binding force as between them, and that Thompson simply took the position of completing the construction of the cottage by purchasing his own materials and hiring Bletcher to do the work by the day. He was not completing the work under the contract with Bletcher; he never attempted to hold Bletcher to the performance of his contract, or to impose any burden of damages upon him. He consented to let Bletcher off, and undertook to do the work through his own employees,' and the plaintiff, having notice of this change in conditions, consented to sell Thompson the materials, and the judgment of the court merely calls upon Thompson to pay for the goods which he purchased subsequent to the cancellation of the contract between Thompson and Bletcher.

When the rulings of the court are considered in connection with the obviously correct theory of the case, they are not open to objection, and we are of the opinion that the findings of fact are fully supported by the evidence, and the conclusions of law flow naturally from the facts thus found.

The judgment appealed from should be affirmed, with costs.

Jbnks, P. J., Thomas, Carr and Rich, JJ , concurred.

Judgment affirmed, with costs.  