ISAACS v. REEVE et al.

(Court of Chancery of New Jersey. Aug. 2, 1899.)

BUILDING CONTRACTS ABANDONING CONTRACT-LIABILITY TO OWNER FOR EXPENSES COMPLETING WORK CLAIMS WORK NOT COVERED BY CONTRACT-EXTRA WORK-CHANGES IN CONSTRUCTION AND MATERIAL.

1. A building contractor abandoned the work and other contractors were employed by the owner to finish the work, on an understanding that they were to do it by day's work, and charge for their services 10 per cent. on the cost. Held, that a charge by one of the contractors for his personal attendance at the place and for horse hire, in addition to the 10 per cent., was not allowable, as against the original contractor, in a settlement between such original contractor and the owner.

2. In such case the second contractors are not entitled to 10 per cent. on a charge for plumbing and tinning, as against the original contractor, in a settlement between him and the owner, where such work was done by the same contractor who had taken it as subcontractor under the original contractor, and had simply finished his contract.

3. In such case a charge for grading by the second contractors will be reduced, as against the original contractor, where it appears that charges were made for grading not included in the specifications between the owner and original contractor.

4. In such case the second contractors will not be allowed, as against the original contractor, 10 per cent. on a charge for painting, where the work was done by the same painter who had the original job, and was simply carrying out his original contract.

5. Where a building contractor abandoned the work, and other contractors were employed by the owner to finish it, the original contractor, in a settlement with the owner, is not chargeable with the costs of repairing masonry and woodwork injured by the sagging of a partition, under a clause in the specifications to the effect that the contractor is to properly brace and support all walls where directed, where the plans do not show any support under such partition, and no direction was ever given the contractor to put a support there, and the sagging took place after the contractor abandoned the building.

6. In such case, where it is admitted that the original contractor was to use old material in repairing a stable on the premises, he is not chargeable, in a settlement with the owner, with the full cost of new material used by the second contractors.

7. Where a building contractor abandoned the work, and other contractors were employed to finish it, the cost of building an ice house and corncrib not included in the original contract are 44 A-1

not chargeable against the original contractor in a settlement between him and the owner.

8. In such case charges by the second contractors for rolling blinds for all the windows of the house, claimed under a clause of the specifications as follows, "Outside shutters for new windows, except those on hall and dormers," are not allowable, as against the original contractor, as they are not within the contract, except to the extent mentioned in the clause.

9. In such case full charge by the second contractors for time consumed in scraping the hardwood floors is not allowable, as against the original contractor, where it appears that the floors were at one time fully protected, and that in moving in new furniture and in putting in the steamheating apparatus, and moving into the house before it was finished, the covering was disturbed and torn up, without the fault of the original contractor.

10. Where a building contractor abandoned the work, and other contractors were employed to finish the work, charges for cementing at the sides between the new cellar bottom and the old foundation, not included in the original contract, are not allowable, as against the original contractor, in a settlement with the owner. 11. In such cases charges for wire screens provided for in the contract are chargeable against the original contractor.

12. In such case, where a clause of the specifications provides that the contract price includes $50 for the hardware of the doors, the owner may, at his option, put in such hardware as he chooses, and have a deduction from the contract price of $50 in a settlement with the original contractor.

13. Where a contractor in a building contract abandons the work, and other contractors are employed by the owner to complete the job, a charge of the architect of $100, as against the original contractor, for new plans and specifications, and his supervision of the work, is excessive, and will be reduced to $50, in settlement between the owner and the original contractor, where it appears that no demand was ever made on the original contractor for the plans and specifications which had been in use at the building.

14. A reasonable charge of a building contractor for extra work and furnishing new material under direction of the owner's architect will be allowed, though the contract called for a certain price and the use of old material.

15. A charge of a building contractor for extra work will not be allowed, where it appears that such work was done as an offset against a failure of the contractor's mason to use in the wall a certain kind of brick, according to specifications.

16. Where a building contractor makes an extra charge for certain doors, which he claims were ordered, and the architect of the owner denies it, there being no motive on the part of

the contractor to incur the extra expense unless he had an order,-such charge will be allowed. 17. Where the owner of the building specially ordered doors of a special pattern in place of cheaper ones, the contractor is entitled to the difference in cost.

18. Where the building contract provides for certain work and material, and the owner requires more difficult work and better material, the contractor is entitled to an allowance for the same.

Interpleader bill by Edward A. Isaacs against Benjamin F. Reeve, Louisa M. Ritter, and others. Claims of the respective parties passed upon and allowed.

Isaac S. Taylor, for complainant. William B. Guild, for defendants.

PITNEY, V. C. This is an interpleader bill, and is filed by the complainant, Edward A. Isaacs, as the owner of a house and lot in Madison, N. J., against Benjamin F. Reeve, who entered into a contract to build the same and had commenced a suit against complainant to recover a balance due him, and Louisa M. Ritter (trading as Wightman & Bros.) claiming to be a creditor of Reeve for materials furnished to the complainant's house, who served on the complainant the first of several stop notices under the third section of the mechanic's lien law served by other like claimants for materials furnished. The complainant by his bill admits the sum of $139.58 in his hands, and has paid that amount into court. The other defendants were all served with process and brought in, but only Mrs. Ritter has answered (it was stated or suggested that the other claimants made common cause with her), and by her answer, upon information furnished to her and her counsel by Reeve, denies that the sum of money so paid in by the complainant is the amount due from him to Reeve under the contract, and sets up that a much larger sum is due for work under the contract, and also for extra work done on the complainant's premises in addition to the contract work. Issue was joined upon this, and the cause brought to hearing. Of course no interpleader was ordered, and the rights among themselves of the several creditors of Reeve have not been put in issue or considered. Complainant, by his bill, makes up an account between himself and Reeve as follows: He credits him with the amount of his contract price, $3,520; charges him with payments in cash made to him on account, $1,320; with penalties for not completing the building within the time mentioned in the contract, 22 days at $10 per day, $220; with payments to laborers who had preferred claims to the amount of $218.26; for hardware furnished to the building by the complainant under a right for that purpose reserved in the contract, $50; with the sum of $1,465.16 paid to a firm of contractorsWood & O'Donnell--for finishing and completing the work upon Reeve's default; for

switches for electric light, $7; and $100 arch itect's fees rendered necessary by Reeve's failure to finish the building: a total of $3,380.42. Mrs. Ritter, by her answer and by evidence, disputes the charge for penalties, 22 days at $10 a day, and at the argument that charge was quite properly abandoned by the complainant. She also disputes the propriety of the architect's charge; also the charge of $1,465.16 for finishing the work, as being grossly excessive and as containing items for which Reeve was not chargeable; and she besides claims items of extra work done by Reeve amounting to $1,244.02,—all, as I have said, upon the information of Reeve. It was admitted by the defendants that Reeve was a few days behind in finishing the building on the 1st day of May, 1897, when by the contract it should have been finished, and notice was served upon him under the terms of the contract that he must finish the building or that the complainant would do it at his expense under a right reserved for that purpose in the contract; and Reeve himself then admitted in writing that he was in default, and consented that the complainant should finish it. He actually abandoned the building about May 7th. It is undisputed that Reeve and his friends had a fair opportunity given them to complete the contract before other persons were employed. The complainant then employed Wood & O'Donnell to complete the contract, which they did at the cost above mentioned. The work was done pursuant to a written contract referring to plans and specifications, all of which were duly filed, dated February 16, 1897. Those documents were prepared by a firm of architects, Messrs. Werner & Windolph, of New York City, Mr. Windolph having charge of this particular transaction. The true construction of the contract and specifications was called in question, and it was claimed on the part of the defendant Reeve that under certain peculiar circumstances, presently to be mentioned, it was agreed that he should not be held to a strict performance of and strict conformity to the specifications. This renders it necessary to detail the circumstances under which the contract was entered into: The architects prepared elaborate plans and specifications, which were submitted to Messrs. Wood & O'Donnell, of Madison, and to Mr. Reeve. Reeve's specialty-also Wood & O'Donnell'swas carpenter work, but he was in the habit of bidding for the erection of buildings in the usual way; that is, to get estimates from sash, blind, and trimmings makers, masons, plumbers, and painters, as to what they would do their part of the work for, and then to bid for the whole upon the basis of such subcontracts. Upon the plans and specifications so submitted to him he made a bid of $5,900. (I should have said that the plans contemplated alterations of and additions to a dwelling already standing.) That bid was

Mr.

tween the parties except so far as they relate to the quality of the work to be done upon the house. Enough has been said to show that it would be inequitable for Mr. Isaacs to hold Mr. Reeve to a strict compliance with the terms of these specifications. When Mr. Reeve, about the 1st of May, was notified that he was in arrear and that the owner would act under a provision of the contract which gave him power to take the matter into his own hands, he found himself unable financially to complete the contract. In fact, I am entirely satisfied that the result of the desire of Mr. Isaacs to get a house with certain characteristics for a certain sum of money resulted in the contract being taken by Mr. Reeve at altogether too low a price. This abundantly appears by a footing up of the materials which were purchased by Mr. Reeve and went into the house in addition to the moneys actually paid to laborers by him or on his account. In fact, I am satisfied that with the very best management the work could not have been done for the price he named. In this embarrassing state of affairs he called upon his brother, William D. Reeve, an experienced builder, to see Mr. Windolph and look the matter over. William D. Reeve called upon Mr. Windolph in New York, and was informed by him that he thought the carpenter work could be finished for $200. He then went out with Mr. Windolph to Madison and they together looked the work over in detail and made an estiImate of what it would cost to finish the carpenter work, and stated to Mr. Windolph he thought it could be done for from $250 to $300, and Mr. Windolph agreed with him. But Mr. William D. Reeve did not undertake the job of finishing it on his brother's account and look to his brother for pay, working under the contract. He was not asked to take the job, as Wood & O'Donnell afterwards took it. The job was then finally thrown up by Benjamin F. Reeve, and the work was put out to Messrs. Wood & O'Donnell upon an understanding that they were to do it by day's work as cheaply as they could, and charge for their services 10 per cent. on the cost. The work was proceeded with and finished by them, and their bill is $1,331.16, to which is added $134 for 10 per cent. on the work, making $1,465.16. The items are given. For their carpenter work labor $411.08; and for their materials $285.11, making $696.19.

The questions to be determined arise, first, out of this Wood & O'Donnell bill, and other items charged by Mr. Isaacs against Mr. Reeve; and, second, out of Reeve's bill for overwork. We will consider them in that order.

Some of the items composing Wood & O'Donnell's bill may be readily disposed of. A considerable sum-$58.75-is charged by O'Donnell for his own attendance at the place; also for horse hire, in addition to the

10 per cent. which he charges. He swears that he did not work with his tools or hands, but that the charges are simply for attendance. I think they cannot be allowed as against Reeve, but that the 10 per cent. was intended to cover that very service.

The next is a charge for $350 for plumbing and tinning. That was done by the same contractor who had taken it as a subcontractor under Reeve, and he simply finished his contract. That item is admittedly right. But I do not think that Mr. O'Donnell is entitled, under his contract, as against Mr. Reeve, to 10 per cent. on that, because he is a carpenter; and that, as I have remarked, was simply the finishing by the plumber of the work which he had agreed to do under Mr. Reeve.

The next item is for grading,-$50. That was done by contract, under, as is claimed, two clauses in the specifications. On the fifth page of the specifications, under the head "Excavation": "Do all excavating and refilling necessary, and finally grade to house." And at page 16: "Carpenter shall remove all surplus earth and rubbish, leaving the building and premises broom clean, and ready for occupancy." The details of just what the grading actually done consisted of were not given. The mason who did the excavation swears that the whole excavation was done for $26, and that it could not possibly have cost as much as $26 to level off the earth so excavated. His estimate, however, did not include the ice house. But, taking the evidence altogether, I am satisfied that there must have been grading included and paid for in that $50, not properly included within the two clauses of the specifications referred to, which, in my judgment, must be confined to simply scraping back the earth which was piled around the cellar and smoothing it down. I shall reduce that item to $25.

The next item is painting,-$180.94. There is some of this work-$30.94-claimed to be extra work, to which reference will be made directly; but the work was done by the same painter who had the original job, and it was simply the carrying out of his contract. I do not think that O'Donnell should be entitled as against Reeve to a 10 per cent. allowance on that.

Part of the work of the mason and the painter included in their bills paid by Wood & O'Donnell, and part of the work of the latter, and going to make up the $1,465.16, was the cost of putting a brace in the cellar under a partition which had sagged, and had cracked the walls above it and broken the trimmings, rendering it necessary to jack up the house at that point, and to patch the mason and wood work, and to repaper the wall. The right to charge that repair to Mr. Reeve is based upon a clause in the specifications as follows, under the head of "Alterations": "The contractor is to properly