Van Clief v. . Van Vechten ( 1892 )

The result reached by the prevailing opinion is based on this provision in the contract:

"Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract."

At the request of the defendant, the following facts were found:

(6) "That the said defendant Smalle never performed the conditions or covenants in the said contract between him and the defendant Van Vechten, contracted, covenanted and agreed to be performed by him, nor did the said defendant ever complete or finish the said work on said building, nor comply with the terms of said contract, but that on the 22d day of September, 1886, the said defendant Smalle wholly abandoned work in and upon said building, and left the said building in an incomplete and unfinished state, and exposed to the elements, and refused and neglected to complete and finish said building, and to perform the conditions and agreements of said contract on his part, although he was duly notified by the said defendant Van Vechten to perform his said contract with her."

(7) "That the said defendant Smalle having so abandoned the work on said building, and having so refused and neglected to perform and carry out his said contract with the defendant Van Vechten, the said defendant Van Vechten duly notified the said Smalle to perform his said contract, and that in default thereof the defendant Van Vechten would cancel and forfeit said contract, and make other arrangements to complete the building, and the said Smalle having failed and neglected to proceed with the erection of said building, the said defendant Van Vechten after giving such notice, and after such default on the part of said Smalle, employed other workmen to finish and complete the said building, and also furnished the materials necessary to finish and complete the said building."

(13) "That the work in completing and finishing said building was done and performed under the direction of said E.A. Sergeant (the architect), and according to the plans and specifications mentioned in said contract."

The prevailing opinion assumes that the thirteenth finding is to the effect that the owner had not rescinded the contract, but completed the building under it. I am unable to give this finding such a construction, because the three findings must be construed together, and so read, the result of the facts found is that the contract had been abandoned by the contractor, and rescinded and declared at an end by the owner, who went on and completed the building according to the specifications mentioned in the contract. It cannot be that in case an owner contracts to have a building erected according to plans and specifications forming a part of the contract, and the contractor half completes the structure and then abandons it, and declares that he is unable, as he did in this case, to perform his contract, and the owner rescinds it and goes on and completes the building according to the original plans, that it is proof that the work was done in performance of and under the original contract.

Such a construction would compel the owner to change the plans upon which the structure had been partially built, in order to escape the inference that he was proceeding under a contract which had been voluntarily abandoned by the contractor and declared to be at an end by the owner.

I am unable to concur in the third proposition in the prevailing opinion: "(3) If nothing is due to the contractor, pursuant to the contract, when the lien is filed, and he abandons the undertaking without just cause, but the owner completes the building according to the contract and under a provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed."

Graf v. Cunningham (109 N.Y. 369), which is principally relied upon to support the proposition, does not seem to be in point. In that case the contractor had not, but the owner had, failed to perform the contract, and the latter completed the building for $170 less than she would have been compelled to pay had the contractor been permitted to complete the building under the contract. Under these circumstances, a material-man who had furnished material to the contractor and duly filed a lien, was held entitled to recover that sum. In that case the contractor had a cause of action against the owner under the contract, and the damages which he was entitled to recover were subject to the liens of persons performing work or furnishing materials for him.

In the present case the contractor had no claim against the owner, and there being nothing due or to become due the contractor, there was nothing to which a lien could attach. (Rodbourn v.S.L.G. Wine Co., 67 N.Y. 215.) In the absence of fraud or collusion, a lienor cannot recover from the owner more than is unpaid, due and to become due on the contract; and it being conceded that the contractor could not have recovered any sum under this contract, I am unable to see how the lienor, whose lien could only attach to the contractor's interest, has established a cause of action.

The words of the statute are: "But in no case shall such owner be liable to pay, by reason of all the liens filed pursuant to this act, a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or in case there is no contract than the amount of the value of such labor and material then remaining unpaid, except as hereinafter provided." (§ 1, chap. 342, Laws of 1885.)

The judgment should be reversed.

All concur with VANN, J., except FOLLETT, Ch. J., dissenting.

Judgment accordingly.