Christopher B. Keogh et al., Appellants, v. Warren W. Westervelt et al., Respondents

Christopher B. Keogh et al., Appellants, v. Warren W. Westervelt et al., Respondents. (Argued May 29, 1876; decided June 13, 1876.) This was an action to foreclose a mechanic's lien on lands formerly owned by defendant Westervelt, but before the filing of the lien sold and conveyed to defendant Donovan. Plaintiff delivered to Donovan a written list of “ sashes, doors and •blinds for four houses,” with a proposition at the foot as follows ; “We will supply sashes, doors and blinds, as per list, for the amount net cash, as per agreement, two thousand dollars ($2,000) on delivery of the goods,” which proposition was accepted by Donovan, and plaintiffs entered upon the performance of thé contract. After delivery of a portion of the goods they demanded payment therefor, and refused to deliver any more until paid for what had been delivered. The defence was, that plaintiffs were not entitled to any payment until entire performance on their part. The referee found that the contract was in writing to deliver the goods for the price of $2,000, and that delivery was a condition precedent to payment; that having failed to perform, they could not recover. There was paroi evidence tending to show that it was agreed between the parties that the goods should be paid for as fast as delivered, and that the words, “ as per agreement,” and the written proposition had reference to such paroi agreement. No separate price was put upon any article named in the list. Plaintiffs simply excepted to the finding of the referee that the contract was in writing. . Held (Millee, Rapallo and Andrews, JJ., dissenting), that the case contained no exception which would enable plaintiffs to avail themselves of the paroi agreement claimed, as they did not request the referee to find such agreement, nor did they except to the finding that the agreement was as claimed by defendants; that the exception to the finding that the agreement was in writing did not reach the question. William Q. Judge for the appellants. W. McDermott for the respondents. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance ; Ohurch, Oh. J., Allen and Folger, JJ., concur. Miller, J., reads for reversal as to Donovan, and affirmance as to Westervelt; Rapallo and Andrews, JJ., concur. Judgment affirmed.