of $788, and had received from the said Norcross on account of the contract the sum of $29,048, leaving still unpaid on the contract and for extra work the sum of $7,118; that the fair and reasonable cost of completing the work called for in the contract when said Norcross took possession as aforesaid was $2,800; that the said Mertz & Gibb, if unmolested, would have finished the work, and furnished what materials were used, and could have done so for this sum. As a conclusion of law, the court found that Norcross became indebted to the plaintiff in the sum of $3,005.38, with interest, for which sum the plaintiff was entitled to judgment, and directed the enforcement of the mechanic's lien in the usual way.

The plaintiff relied upon the testimony of Mertz, one of the subcontractors, and there were introduced in evidence a considerable number of letters that passed between Norcross and Mertz & Gibb in relation to the performance of this contract. It would seem that, as the work progressed, cracks appeared in the plastering done by the plaintiff, which Norcross required Mertz & Gibb to repair; that Mertz & Gibb insisted that these cracks were caused by defective work done by other contractors in repairing the walls upon which the plaster was placed by Mertz & Gibb, and Mertz & Gibb deliberately refused to make these repairs. On March 13, 1901, Norcross wrote to Mertz & Gibb, stating that the architect had called his attention to certain cracks in the plaster work of the building, and asked that they be repaired immediately; that:

"We understand you refuse to do this for various reasons, and if you will refer to your specifications you will find that your work was to be left perfect and that no excuse would be taken for any defects caused by any other person's work-unless they were called to the architect's attention at the time the work was executed, we therefore in accordance with our contract with you call upon you to at once have the defective plaster work repaired."

In answer to this letter, Mertz & Gibb wrote on March 22, 1901, stating that it was very evident that the cracks referred to were the result of construction, and could in no way be attributed to the shrinkage of white mortar, as claimed in Norcross' letter, and closing with this statement:

"We have never at any time, and do not at present refuse to make good any defective work on our part, and stand ready to do so in the present instance, but we do not consider it just to be held accountable for defects which are obviously the result of the workmanship of others."

In reply, on March 23d, Norcross wrote:

"We fully realize the difficulty in placing the responsibility of the cracks in the angles, but we are not prepared to admit that some of the trouble was not caused by some defect in the plaster work (either in the contraction of the mortar or by the unequal thickness of mortar); neither are we prepared to attribute the cracking to defective workmanship on the partitions"-and after stating the reason which led them to conclude that at least some part of the defective work was that done by Mertz & Gibb, continued: "This being the case and it being difficult to place the entire responsibility where it belongsis the reason why we say to you that the easiest way and the best way would be to leave the work properly repaired, and ask Roebling to pay a proper proportion of the expense."

There seems to be no answer to this letter, but on March 30, 1901, Norcross again wrote to Mertz & Gibb, stating that he was informed

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that they still refused to go on with the work under these conditions, and stating:

"We now call upon you to perform your contract and finish that work, and turn it over to us in a manner satisfactory to the architect, as called for by the specifications. * We have borne with great deal of annoyance on this plastering, and we certainly shall not stand it any longer. We wish a large force of men put there to finish up the plastering of that building, otherwise we will have to take the matter into our own hands in accordance with clause 3 of our contract, therefore we hereby give you that notice."

Upon the said day Mertz & Gibb replied to this letter as follows:

*

"In reply to your favor of even date would state that we refuse to do any repairing of any of the cracks caused by other's work and not attributed to any defective material or workmanship on our part. We are ready to carry out our part of the contract and expect you to do the same. In going over the second floor to-day we find a great many cracks in the angles caused by the floors."

To this letter Norcross replied on April 1st, and said:

"We have already notified you that unless your work at that building was carried along in a more satisfactory manner, we should have to put on other men-according to clause 3 in your contract. We beg to call attention to a clause in your contract which reads as follows: 'In case any of said work done, or materials provided by the said party of the second part shall be unsatisfactory to the architect or to the said party of the first part, as your employers, then the said party of the second part will, on being notified thereof by the said first party, immediately remove such unsatisfactory work or materials, and supply the place thereof with other work and materials satisfactory to the said architect and to the said first party.' We have shown you

*

the easiest way out of the matter, which is to make the work good, and we will see that part of the amount is paid by the Roebling people; we do not ask you to look to the Roebling people at all. If you do not do this, we shall have to put on men to do the work and charge the expense to your account hereafter. We also find that after all our repeated notices to you, you have only 8 plasterers at work, when you should have at least three times that many."

To which letter Mertz & Gibb replied on the same day, stating that they were taking men from other jobs to the hospital building, and hoped in a day or two to be going with full force. On April 4th, Norcross wrote to Mertz & Gibb; stating that, in accordance with the clause in the contract, he had put on men to cut out the cracks in the plastering and to repair them; calling upon them to select an arbitrator who would act with one selected by the other persons to determine who was responsible for the cracks; notifying Mertz & Gibb to smooth some plastering with sandpaper, and do the patching which was a part of their contract; and closing as follows:

"In accordance with our former notice to you, unless you put men on this work at once, we will proceed to hire them and charge the same to your account. This work must not be delayed any longer by obstructions on your part."

Thus the situation on April 4th was that after repeated demands on Mertz & Gibb to do certain work which it was alleged they were bound to do under the contract, and which they had refused to do, Norcross had put men on to do this work, and then demanded that they proceed to do the balance of the work, or, upon a failure to do so, Norcross would, under the provisions of the contract, to which attention has been called, employ men to do this work, and charge it to the amount to be

paid by them to Mertz & Gibb. It is not disputed that Norcross had a right to give this notice, and it is not disputed that Norcross had a right to employ men to repair those cracks, whether Mertz & Gibb were bound to repair them under the contract or not. If Mertz & Gibb were not bound to repair them, then Norcross could not have charged against Mertz & Gibb the amount that they paid for repairing the cracks. If Mertz & Gibb were bound to repair those cracks, Norcross had the right to employ the men, as Mertz & Gibb had refused to do the work, and charge the amount to Mertz & Gibb upon the final completion of the work. Norcross therefore certainly was acting within his rights in employing these men, and to that, certainly, Mertz & Gibb could have no objection. At this same time, on April 4th, Mertz & Gibb were duly notified to complete their work under the contract, which they admitted they were bound to complete, and of the progress of which work constant complaint had been made in the correspondence before set out; and then distinct notice was given that, unless they put men on the work at once, Norcross would proceed to hire them, and to charge the cost to their account, and that the work could not be delayed any longer by the obstruction on the part of Mertz & Gibb. Mertz & Gibb then had the notice provided for by the contract. They had then notice to complete the work under the contract which they conceded they were bound to do, or, in default, Norcross would employ men to do the work, and charge the costs to Mertz & Gibb. Up to this point this correspondence speaks for itself. Mertz & Gibb in their letters seem to have conceded that the work was not progressing as required by the contract, for there were promises that more men would be put to work, and that the work would progress satisfactorily. From the date of this letter of April 4th, Mertz testified that they were proceeding with the work under the contract; that on April 10th the plasterers' delegate came in the building, and Mertz had a conversation with him; that about three days afterwards Mertz was notified by this delegate to come to the Plasterers' Union; that he did not go to the rooms, and the next morning the men struck work on the building. Mertz further testified that he had asked the plasterers' delegate whether he thought it was right that he should send some men to the building to repair certain cracks in the building without asking "us the cause of the trouble"; that "he sent the men there for Norcross Bros. over our head, and Norcross Bros. and ourselves had some controversy in regard to these cracks before, and, without settling the question at all, through the delegate, then, the superintendent put on some plasterers in the building in connection with our work, but they were working for Norcross Bros.; and I asked the delegate whether he thought this was right, without asking us first the cause of the trouble"; that to that the delegate said he did, whereupon Mertz asked him who he thought he was talking to; that the delegate replied that "he did not give a d who he was talking to"; that Mertz replied that, “if he went on like that, I would put him out of the building," whereupon they parted, and it was in consequence of this dispute that the strike was ordered; that the delegate requested Mertz to go to the Plasterers' Union on Tuesday night, but Mertz refused to go, and the next day the men refused longer to work for him. This is the account which

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Mertz gives of the cause of the strike which resulted in the men leaving the work. Mertz evidently has the dates somewhat confused. As it seems to have been afterwards conceded on both sides that the strike happened on April 10th, as a result of Mertz's refusal to confer with the Plasterers' Union on the 9th, and that this interview with the delegate happened two or three days before, it must have been the 6th or 7th of April; the notice to which attention has been called having been served upon Mertz & Gibb on the 4th of April. At any rate, on the 10th of April the men struck, and Mertz testifies that he notified Norcross' superintendent of that fact. Mertz testified, and the court found, that Norcross took the work out of the hands of Mertz & Gibb on the following day (April 11th), but that seems to have been a mistake. Mertz confesses that he had no personal knowledge of what happened in the building after the men struck. Undoubtedly there were plasterers working at the building during the week, but it would appear that they were all plasterers that were employed by Norcross in repairing the cracks which Mertz & Gibb had been notified to repair, but which they had refused to repair, as not called for by the contract. On April 16th Norcross wrote a letter to Mertz & Gibb, in which he said: "The matter of the delay to the plastering at the Lying-in Hospital building is assuming very serious proportions, and we must now again call upon you for the last time to put in a sufficient number of men to finish it according to contract;" and stating that the reason that the men refused to work was caused by the defendant's language to the delegate, which was caused by the fact that he had brought the delegate to task for giving Norcross men to finish up the cracks in the plastering which Mertz & Gibb had refused to do. This "changes the strike aspect of the case entirely and leaves you responsible for the actions of the men; it is therefore your duty to at once go before the board as they requested you before, and have this matter settled once for all. We shall not wait any longer than this day at 6 o'clock, as you have already had your three days' notice according to the contract. If you cannot furnish the necessary men after that time, we will finish the plastering ourselves at the least possible expense, and charge it to your account." No answer appears to have been received to the letter, whereupon Norcross went on and completed the work, and there was undisputed testimony that he paid out an amount largely in excess of that remaining unpaid upon the Mertz & Gibb contract. On April 10th the men refused to work for Mertz & Gibb, and after that they made no attempt to complete the work; never expressed any willingness to proceed; simply abandoned it until August 7th, when, in consequence of financial difficulties, a receiver of the firm was appointed.

Now, these facts are not disputed. They are conceded by subsequent letters from Mertz & Gibb to Norcross, and there is no evidence to show that Mertz & Gibb could possibly at any time after the 10th of April have procured workmen to complete their contract. Unless they are relieved from their obligation to finish this work by reason of the clause of the contract to which attention has been called, it would seem to be clear that at the time the lien was filed there was no money due to Mertz & Gibb, and that no money subsequently became due. The contract expressly provides that the work is to be pushed forward

as rapidly as possible, provided Mertz & Gibb are not obstructed or delayed in the prosecution or completion of the work "by the abandonment of the work by the employees through no default of his, in which event an extension of time equivalent to such delay shall be granted upon application to said first party in writing within twenty-four hours of the occurrence of such delay."

For several reasons it appears to me that, upon the undisputed testimony, Mertz & Gibb have not brought themselves within this provision of the contract. In the first place, no application in writing was presented to Norcross within 24 hours of the happening of the delay. Mertz swears that he saw Norcross' manager, and Norcross advised him to wait a day or two, and see what would happen, but no written application for an extension of time in writing was made. The delay continued, according to the clear weight of the evidence, until the 16th, before anything was done, upon which day Mertz & Gibb were notified that, unless they procured men on the next day, Norcross would take charge of the work himself. They made no answer to this application at all, and, so far as appears, never made any attempt after that to complete the work.

It is also quite apparent that the cause of the strike was through the default of Mertz & Gibb. What men he had at work were working on the building when Mertz himself called the plasterers' delegate to account for furnishing Norcross with men to fill up the cracks in this building. Norcross had again and again called on Mertz & Gibb to perform that work. They had refused. Norcross had given them the notice under the contract that, in case of their continued refusal, Norcross would do that work. Mertz & Gibb had still refused, and Norcross had a perfect right to do the work. The question as to who was to pay for it was to be determined thereafter. It certainly was no business of Mertz & Gibb to interfere with Norcross in doing the work, or to call the plasterers' association to account because they allowed. their men to do that work. According to Mertz's own account, his language to the delegate in consequence of that dispute was the cause of the strike. It certainly cannot be said that such a strike was "through no default of his." Norcross was constructing an expensive building, the necessity of the situation requiring that the various subcontractors should keep up with their work. Mertz & Gibb's delay in the performance of their contract had been the cause of remonstrance after remonstrance from Norcross, and certainly there must have been some time at which the situation absolutely required Norcross to take the work out of their hands and complete it. Here the whole work was suddenly brought to a stop by the men refusing to work longer for Mertz & Gibb, and this refusal brought on by the unreasonable and unjustifiable complaint of Mertz that Norcross had been allowed to obtain men to do his own work without the consent of Mertz & Gibb. Mertz & Gibb never did make up their dispute with the union, and, so far as appears, were never thereafter able to complete this work; and I think that, upon the overwhelming weight of evidence, it is quite apparent that this whole difficulty was caused by the neglect and refusal and inability of Mertz & Gibb to complete the work that they had agreed to do, and comply with their contract.