Gordon McKenzie et al., Respondents, v. Maria E. Decker, Administratrix, etc., Appellant

Gordon McKenzie et al., Respondents, v. Maria E. Decker, Administratrix, etc., Appellant. (Argued January 21, 1884 ; decided February 5, 1884.) This action was brought to recover a balance alleged to be due upon a contract between plaintiffs and Nicholas H. Decker, defendant’s intestate, for the construction of a cemetery vault by the former for the latter. The substance of the contract and the facts, so far as 'pertinent, as well as the holdings thereon, are given in the following extract from the opinion : “ The referee found as a fact that after the construction of the vault, the defendant expressed himself perfectly satisfied with the work. There was abundant evidence to sustain this finding and we must assume its truth in a further examination of the case. The contract provided for payment to be made to the builder in two installments — “ one-half of the amount when the foundation is built, and the cut granite required for the vault is in Johnstown; the balance of the price to be paid on the completion of the work to his, said N ieliolas H. Decker’s satisfaction.” That it was so completed was established, and the balance remaining unpaid became due and payable, unless we are to heed the criticism of the learned counsel for the appellant that it was not so completed by the builder, but was finished by Decker himself. The difficulty grew out of a disagreement as to the meaning of the contract. The builder was' about to put on the fourth roof stone, which was a limestone, when the defendant insisted it should be granite. The builder refused to make the substitution, and Decker did it himself, charging against the builder the cost of the change, and also that of the steps, cut out of a single block, instead of being made separate. The courts below have sustained Decker’s construction, and allowed to him, upon his demand, the amount expended by him for the granite roof stone. Practically, therefore, the placing of the fourth stone of granite, although furnished under Decker’s direction, and upon his responsibility, has been paid for by the builder by its application on the contract-price, and as by the judgment it has been furnished at his expense, it may fairly be said to have been furnished by him so that the balance of the contract-price became due even on the appellant’s construction. And that it was so due and payable Decker admitted, for he offered to pay what he conceded to be due,, which was less than the builder claimed, and the offer negatived any claim that nothing was due, which would have been the case if Decker had stood upon the ground that the vault had not been completed to his satisfaction. It is to be observed also that the stipulation in the contract is a very rigid and dangerous one. It puts a power in the hands of the one party which may be wielded very harshly and severely against the other, and we ought not to construe it with any unnecessary liberality in favor of one who possesses it. By the terms of the contract, payment became due upon the completion of the vault to Decker’s satisfaction. It was so completed, and the only further question was how much was due to the builder growing out of Decker’s payments for material. The defendant cannot be permitted to hold two inconsistent positions. If he insisted that Oliver was in default and did not complete the vault, then he owed him nothing, and should not have offered payment and recognized a liability, nor charged against Oliver what he himself paid for his own completion of the work. But in his answer he alleged that he had paid not $2,500, which was the first installment of the contract-price, but $4,440, a sum which could only be reached by charging all of his advances to Oliver, including the granite roof-stone, and treating him as having carried the work to completion, and as responsible for it to the end. The peculiar circumstances of the case take it out of the general rules, which the appellant’s counsel invokes.” Ira D. Warren for appellant. Eugene E. Pomeroy for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for affirmance. All concur. Judgment affirmed.