
    Rudolph Hilbrand, Appellant, v. Ferral C. Dininny, Jr., Respondent.
    
      Contract by a New York city contractor to build, in the country, on a percentage compensation— custom to pay union men their carfare and board—when the owner will not be assumed to hare contracted in reference to it.
    
    In an action to recover damages for the breach of a contract by which the defendant, a New York business man, having a summer residence at Suffern, N. J., employed the plaintiff, a New York builder, to perform work about such summer residence and agreed to reimburse l>im for the amount expended by him for labor and materials, and in addition thereto to pay him a certain percentage of such amount as his compensation, it appeared that the plaintiff was an employer of union men, and that the men who performed work upon the defendant's summer residence were taken by the plaintiff from the city of New York.
    It further appeared that it was the custom when union men were employed upon work outside the city of New York to pay their railroad fares and board, and that the plaintiff had paid such board and railroad fares.
    
      Held, that, in the absence of knowledge of such custom, or of an agreement on his part to pay the board and railroad fares of the men employed upon the work, the defendant was not liable to reimburse the plaintiff therefor.
    Appeal by the plaintiff, Rudolph Hilbrand, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of March, 1902, upon the report of a referee, awarding to the plaintiff a sum less than that for which the defendant had offered to allow judgment to be taken.
    
      Henry H. Whitman, for the appellant.
    
      John J. Adams, for the respondent.
   Laughlin, J.:

Two causes of action are set forth in the complaint. The first cause of action is to recover $882.28 for work, labor and services performed and materials furnished in and about fitting up a dwelling house for the defendant at Ninety-first street and Riverside drive in the city of New York. The answer admits the allegations constituting this cause of action but pleads payment.

It appears that after the plaintiff rendered a bill for the materials and services embraced in this cause of action and for the services and disbursements included in the second the defendant paid the plaintiff the sum of $4,000. The testimony of the defendant is to the effect that at the time of this payment he had before him the bill for the services and materials constituting the first cause of action, the correctness of which he admitted, and that in making the payment he stated in substance that he desired to pay this bill and allow the balance to be applied on the other bill. The plaintiff’s superintendent to whom the payment was made denies that anything was said with reference to the application of the payment on the first bill and the plaintiff maintains that he exercised his right, in these circumstances, to credit the entire payment on the second bill which, however, it is conceded was disputed by the defendant.

This question of fact, as to the application of the payment, the referee has resolved in favor of the defendant, for he awarded judgment for the plaintiff in the sum of $600 only and interest thereon together with costs down to the time when the defendant made a formal offer of judgment in favor of the plaintiff for $150. The defendant being then entitled to the subsequent costs, the plaintiff’s recovery has been reduced to the amount of $120.86.

The second cause of action is based on a parol agreement by which the plaintiff claims that he was to purchase the materials and employ labor in the performance of work on the defendant’s house and barn at his summer residence in Suffern, N. J., and to purchase furniture therefor, and to be reimbursed for those disbursements and to receive as his compensation ten per cent on the amount expended for labor and five per cent on the amount expended for materials and furniture. The plaintiff showed, and it was not controverted by the defendant, that he expended the sum of $6,129.54 for material and furniture (the charge for painters’ services was included in this item), the sum of $3,529.02 for the labor of carpenters, cabinetmakers, varnishers and machinists, and $839 for their board and $150.48 for their railroad fare from New York to Suñera, and $58.42 for freight and express charges on materials shipped. The plaintiff claims the right to recover for all of the disbursements, and in addition ten per cent on the amount expended for labor, excluding the disbursements for board, railroad fare and freight and express charges, and five per cent on the amount expended for materials and furniture, except $2,633.10, for which no percentage is claimed. The defendant has paid the plaintiff the sum of $9,000 to apply on the claims embraced in the two causes of action. The action is brought to recover the balance.

Most of the men employed on this work were brought from the city of New York, where the plaintiff was engaged as contractor and builder, and they were paid at the prevailing rate of wages in New York, except that double pay was not allowed for extra time. The rate paid was four dollars and thirty-seven cents per day of ten liours for carpenters; three dollars and seventy-ffve cents per day of ten hours for painters, and three dollars per day for cabinetmakers; two dollars and eighty cents per day for varnishers and five dollars per day for machinists, it not being stated how many hours constituted a day for the last three.

The defendant concedes that he agreed to reimburse the plaintiff •for the amount expended for labor and materials and furniture; but .he contends that it was the understanding that the rate of wages to be paid was the prevailing rate of wages at Suffern, which, it appears, ranged from two dollars and twenty-five cents to two dollars and seventy-five cents per day for ten hours’ work. The defendant also concedes that he was to pay the plaintiff for services ten per cent on the amount expended for .labor and five per cent on the amount expended for materials, and five per cent also on the amount expended for furniture where a trade discount was obtained by the plaintiff.

The contract was negotiated between the defendant and one Kidd, the plaintiff’s superintendent. The plaintiff was a well-known contractor and builder in the city of New York, and was connected with the construction of the University Club, the New York Life Insurance Building and other large and costly buildings. The father of the defendant’s son-in-law, Mr. Tuck, was vice-president of the New York Life Insurance Company, and the plaintiff was recommended to the defendant by Mr. Tuck, the son-in-law. Early in the month of June the plaintiff was requested to go to the defendant’s summer-residence for the purpose of making an estimate upon the work which defendant desired to have performed. Ilis superintendent, Mr. Kidd, looked over the buildings and submitted an estimate under date of June 9, 1898, to do the work therein specified “ all for the sum of about $4,500.” Subsequently, Kidd called at the defendant’s office, and it is conceded that the defendant rejected this estimate on the ground that it was too high. Thereupon a. proposition was made either by Kidd or the defendant, their testimony differing -on this point, to have the work done on a percentage basis, the plaintiff to be reimbursed for the amount expended for labor and materials, and to be paid for his services ten jier cent on, the labor and five per cent on the materials purchased. This was agreed upon by both parties. It is conceded that nothing was said as to who should pay the board of the men or their railroad fares. On the subject of wages the defendant testifies : “ I told Mr. Kidd I would not pay the prevailing rate of wages in New York City for country work, that the workmen at Suffern worked ten hours a, day for a day’s labor; he said he thought he could get the men to work on that basis.” Mr. Kidd denies that the defendant stated that he would not pay the prevailing rate of New York wages for country work, but testifies : “I told Mr. Dininny our men would work ten hours a day in Suffern; it would be a saving on the board, it would be two hours’ more work for each.” The defendant’s son-in-law, Mr. Tuck, was in the office at the time of this conversation, but. did not take part in it. He claims to have overheard it all, and testifies that the defendant said that he would not pay union wages and expected the men to work ten hours a day, and then, in answer to-the question, “ And pay the prevailing rate of wages at Suffern ? ” he answered, At Suffern and not at New York.” He testified subsequently, however, that the defendant’s version of the conversation, which was merely that he would not pay the New York rate of wages, was correct.

The referee has disallowed the disbursement for the board of the men and their railroad fares, and has allowed a recovery only on the basis of the rate of wages prevailing at Suffern. The plaintiff employs union men, and it was shown to be the custom to pay the railroad fares and board of such men when employed on work outside the city. It does not appear that a different rate of wages prevailed or a different custom existed with reference to non-union men. It was not shown, however, that the defendant knew of. this custom, and it would not be binding upon him in the absence of such knowledge. The statement made by Kidd, to the effect that the men would work ten hours a day and that it would be a saving on their board is altogether too indefinite to be the basis of an indication as to who was to pay the board. The only other evidence on the subject is the defendant’s knowledge that these men were traveling back and forth on the railroad, and an inquiry made by him with reference to where they were stopping and what the foreman personally was paying for board. We are of opinion, therefore, that the referee was right in disallowing the claim for board and railroad fares, but we think he was in error in holding that the plaintiff could only recover that part of his disbursements for labor which would have been required at the prevailing rate of wages at Suffern. This finding we regard as against the weight of the evidence. It is opposed by all the probabilities of the case. The defendant was a resident of Hew York and engaged in the coal and iron business there. He desired his country residence and bam altered, repaired, decorated and painted, and fitted with electric lights and bells. In short, he desired the work done by a prominent city builder who knew what would be necessary for the comfort and convenience of a Hew York 'business man for a summer country home. The time was short and he wished the work done quickly. As the work progressed he materially enlarged the plans and extended the work far beyond what was contemplated when the original estimate was made. It does not appear that he at that time knew the prevailing rate of wages at Suffern, but it is manifest that he knew that the rate was lower than that prevailing in the city. The conversation at the time the agreement was made, according to his own version of it, would indicate that he expected the plaintiff was to take his own workingmen from the city; but, however that may be, he was aware of the fact that the men were taken from the city as he saw them going back and forth from time to time from the early commencement of the work. According to the testimony of the plaintiff’s foreman, the defendant inquired of him and was told the wages the men were receiving, but this is controverted by the defendant.

It must be borne in mind that the defendant conceded that he was to reimburse the plaintiff for the amou/nt expended for labor, and there is nothing to indicate that he had any expectation that the plaintiff was to bear personally any part of the cost of labor. The defendant did not see fit to let out the contract; but he wanted it done under the direction and superintendence of the plaintiff, who was to advance the money for the labor and materials and be reimbursed therefor and receive the percentages for his service, which the evidence shows was very moderate compensation. In view of the nature of this contract, if the agreement as to the rate of wages was as defendant contends, it is improbable, we think, that the defendant would have allowed this work to progress without making any inquiry as to the rate of wages at Suffern or having an understanding with the plaintiff in regard thereto, or ascertaining.what the plaintiff was paying the men, all of which he admits that he did not do. Any man of ordinary prudence must have known in these circumstances that a misunderstanding would be inevitable, unless he was to pay what the men were actually receiving. If his understanding was as he claims, it was his duty to the plaintiff to call attention to the fact and avoid a misunderstanding and personal loss to the plaintiff, and we think it probable that that is what he would have done in those circumstances. It is likewise improbable that the defendant believed that skilled workmen, during a busy building season, would be willing to accept employment in the country and pay their own board and expenses away from home, at less wages than they were receiving in the city. From the plaintiff’s standpoint we think it clear that he did not intend to pay this difference in wages out of his own pocket. The percentages he was to receive could upon no theory justify that inference, for the difference in the rate of wages exceeds those percentages. Moreover, it appears that the plaintiff, as an employer of union men, would have had all his other building work in the city stopped by a strike if he paid less than the union rate of wages. Of course the plaintiff was aware of this, and while the defendant may not be chargeable with knowledge of it as a matter of law, these matters are common knowledge nowadays and he would be likely to know that differences would arise. It is extremely improbable that the plaintiff would have made such a contract, and if no other inference were admissible we would be inclined to hold that the minds of the parties did not meet; but we think that it was fully understood and agreed that plaintiff was to take his employees from New York and that they were to receive the rate of wages paid in New York for similar services.

The arrangement by which the plaintiff was to furnish furniture for the defendant was made some time after the agreement to do the work. The defendant learned that the plaintiff could get a trade discount and requested the plaintiff to purchase the furniture for him, agreeing to pay, as he claims, five per cent where a trade discount was obtained, but agreeing to pay, according to the testimony of Kidd, five per cent whether a trade discount was obtained or not. The furniture was purchased in the name of the plaintiff and paid for by him. The defendant, however, selected it. It appears that some stores allowed a trade discount to builders from five to twenty-five or thirty per cent, and other stores allowed none. Some of the furniture was purchased at stores where no discount was allowed. We infer from the evidence that the plaintiff claimed a right to percentages on these purchases, but it would seem that he abandoned the claim upon objection being made by the defendant. If this be not so, however, that was at most a question of fact on which we would not be disposed to interfere with the finding of the referee. But for the reasons already stated the judgment should be reversed and a new trial granted before another referee, with costs to appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered before another referee, with costs to appellant to abide event.  