Jacob Haag et al., Respondents, v. Charles Hillemeier, Appellant

Jacob Haag et al., Respondents, v. Charles Hillemeier, Appellant. (Argued April 25, 1890; decided June 3, 1890.) Appeal from judgment of the General Term of the Supreme-Court in the second judicial dejiartment, entered upon an order made February 13, 1888, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. This action was brought to foreclose a mechanic’s lien. Plaintiffs contracted to build certain buildings for defendant ; they alleged performance and that the final installment under the contract was due. Defendant alleged a failure to perform in several particulars and claimed damages. The contract was in writing and referred to certain plans and specifications as annexed thereto, and the work was to be performed.in accordance therewith. It was conceded that no-plans or specifications were annexed or signed by the parties. Certain specifications were received in evidence which were submitted to plaintiffs and others for the purpose of obtaining bids for the work. It was found that these were not those agreed upon when the contract was executed. Plaintiffs testified, under the objection that oral evidence at variance with the written contract was not admissible, that they offered to do the work in accordance with said specifications at a certain price, and for a less price if certain provisions therein were omitted, and that defendant accepted the latter offer. Held, the court committed no error in receiving ora.1 evidence to show what specifications were in fact agreed upon. The trial court found, on conflicting testimony, that some-of the specifications were modified by mutual agreement of the parties, and that plaintiffs had substantially performed, but had failed to exactly perform other specifications, and allowed to defendant a sum as damages, which was deducted from the-contract-price. Held, that these were questions of fact, the determination of which could not be reviewed here. Henry W. Hayden for appellants. Joseph S. Wood for respondents, [MAJORITY — Follett, Ch. J.,] Follett, Ch. J., reads for affirmance. All concur. Judgment affirmed.