Opinion
08-02-1899
ISAACS v. REEVE et al.
Isaac S. Taylor, for complainant. William B. Guild, for defendants.
Interpleader bill by Edward A. Isaacs against Benjamin F. Reeve, Louisa M. Ritter, and others. Claims of the respective parties passed upon and allowed.
Isaac S. Taylor, for complainant.
William B. Guild, for defendants.
PITNEY, V. C. This is an interpleader bill, and is filed by the complainant, Edward A. Isaacs, as the owner of a house and lot in Madison, N. J., against Benjamin F. Reeve, who entered into a contract to build the same and had commenced a suit against complainant to recover a balance due him, and Louisa M. Ritter (trading as Wightman & Bros.) claiming to be a creditor of Reeve for materials furnished to the complainant's house, who served on the complainant the first of several stop notices under the third section of the mechanic's lien law served by other like claimants for materials furnished. The complainant by his bill admits the sum of $139.58 in his hands, and has paid that amount into court. The other defendants were all served with process and brought in, but only Mrs. Ritter has answered (it was stated or suggested that the other claimants made common cause with her), and by her answer, upon information furnished to her and her counsel by Reeve, denies that the sum of money so paid in by the complainant is the amount due from him to Reeve under the contract, and sets up that a much larger sum is due for work under the contract, and also for extra work done on the complainant's premises in addition to the contract work. Issue was joined upon this, and the cause brought to hearing. Of course no interpleader was ordered, and the rights among themselves of the several creditors of Reeve have not been put in issue or considered. Complainant, by his bill, makes up an account between himself and Reeve as follows: He credits him with the amount of his contract price, $3,520; charges him with payments in cash made to him on account, $1,320; with penalties for not completing the building within the time mentioned in the contract, 22 days at $10 per day, $220; with payments to laborers who had preferred claims to the amount of $218.26; for hardware furnished to the building by the complainant under a right for that purpose reserved in the contract, $50; with the sum of $1,465.10 paid to a firm of contractors— Wood & O'Donneil—for finishing and completing the work upon Reeve's default; for switches for electric light, $7; and $100 architect's fees rendered necessary by Reeve's failure to finish the building: a total of $3,380.42. Mrs. Ritter, by her answer and by evidence, disputes the charge for penalties, 22 days at $10 a day, and at the argument that charge was quite properly abandoned by the complainant. She also disputes the propriety of the architect's charge; also the charge of $1,405.16 for finishing the work, as being grossly excessive and as containing items for which Reeve was not chargeable; and she besides claims items of extra work done by Reeve amounting to $1,244.02,—all, as I have said, upon the information of Reeve. It was admitted by the defendants that Reeve was a few days behind in finishing the building on the 1st day of May, 1897, when by the contract it should have been finished, and notice was served upon him under the terms of the contract that he must finish the building or that the complainant would do it at his expense under a right reserved for that purpose in the contract; and Reeve himself then admitted in writing that he was in default, and consented that the complainant should finish it. He actually abandoned the building about May 7th. It is undisputed that Reeve and his friends had a fair opportunity given them to complete the contract before other persons were employed. The complainant then employed Wood & O'Donnell to complete the contract, which they did at the cost above mentioned. The work was done pursuant to a written contract referring to plans and specifications, all of which were duly filed, dated February 16, 1897. Those documents were prepared by a firm of architects, Messrs. Werner & Windolph, of New York City, Mr. Windolph having charge of this particular transaction. The true construction of the contract and specifications was called in question, and it was claimed on the part of the defendant Reeve that under certain peculiar circumstances, presently to be mentioned, it was agreed that he should not be held to a strict performance of and strict conformity to the specifications. This renders it necessary to detail the circumstances under which the contract was entered into: The architects prepared elaborate plans and specifications, which were submitted to Messrs. Wood & O'Donnell, of Madison, and to Mr. Reeve. Reeve's specialty—also Wood & O'Donnell's— was carpenter work, but he was in the habit of bidding for the erection of buildings in the usual way; that is, to get estimates from sash, blind, and trimmings makers, masons, plumbers, and painters, as to what they would do their part of the work for, and then to bid for the whole upon the basis of such subcontracts. Upon the plans and specifications so submitted to him he made a bid of $5,900. (I should have said that the plans contemplated alterations of and additions to a dwelling already standing.) That bid wasmade up, as he swears, as follows: Carpenter work and materials, $3,469; plumbing, $459; mason work, $1,283; painting, $300; and sash, blinds, doors, and frames, known as "mill work,"—subsequently furnished by Mrs. Ritter, $463,—a total of $5,974. Without the mill work it was about $5,500, and in her answer Mrs. Ritter alleges the bid to have been $5,500. The bid of Wood & O'Donnell was $5,500. The complainant was unwilling to invest so much money, and instructed his architect to build a cheaper house. The architect then had several consultations with Mr. Reeve, and they agreed upon certain changes and omissions which would produce a certain reduction in the cost of the building. Memoranda of some of those changes and omissions were made and preserved. New plans were prepared showing the principal part of the changes. The specifications were not changed, and the plans themselves did not show all the work that was to be done. They covered only the work on the house, while at the end of the carpenter's specifications are these items: "Sink in ground an ice house 8'0' x 8' 0"x6'0" as directed; use old material. Build a corncrib "5'0 x 10'0" as directed; use old material. Build addition to barn 18'0"x20'0" with cellar 6'0" high, carriage house on ground level, and coachman's room over same; use old materials and repair barn." Then in the painter's specifications it was provided—"Paint barn, etc., two coats." There were no plans or specifications other than the above for the barn, or ice house, or corncrib. The specifications provided for the original plans were used for the new and cheaper plans, with the exception of one page —page 9—which was omitted. What was found on that page does not appear. The specifications, so mutilated, were, at the signature of the contract proper, signed by Reeve under protest as he says. He swears that he asked Windolph to draw new specifications to show the agreed changes, but that Windolph was busy and had not time at the moment, and declared that they understood each other and would go according to their understanding and not according to the letter of the specifications; and this is substantially admitted by Windolph. The result of the conferences between Windolph and Reeve was, in the first place, that Reeve reduced his bid from $5,900 to $5,500 to meet Wood & O'Donnell's bid, and then after the changes were talked over and agreed upon reduced it to $3,520, a further reduction of $1,980. Wood & O'Donnell also bid upon the new and reduced plan, but their bid was between $500 and $600 greater than Reeve's. Before bidding Reeve submitted the new plans to the mason, Corbett, who had bid $1,283 on the first plans, and obtained a reduction from him of $370, making his bid $913. (These figures are approximate.) The specifications provide for what are called "working detail plans" to be furnished to the contractor during the progress of the work, and such detail plans were furnished by the architect.
'The difficulty of settling the rights of the parties arises out of the disagreement between the architect and Mr. Reeve as to what was actually left out, without being so mentioned in the specifications, and the promises made by Mr. Windolph to Mr. Reeve to give him certain advantages in these "detail drawings" by simplifying the work; and the precise question in that connection is the extent to which the simplification was to be carried. I have said there was a written contract between the parties. That referred, in the usual way, to the plans and specifications, and in the body of it is confined entirely to the house, no mention being made of the ice house, corncrib or the barn, except as I will now state. On the blank page of the contract, which is a printed one filled up, is an entry in manuscript that—"The following changes have been made in the specifications to form part of this contract: viz."—of which there are seven. No. 3 says: "Concrete foundation under addition to barn 12" thick 8'0" high as directed." No. 7 says: "Continue gal. iron water pipe of barn to inside of barn to have nozzle for hose connection." This last does not imply any change in the bam; but No. 3 providing for concrete foundation to the barn does imply such a change. Otherwise the contract which was filed is confined entirely to the house; and so are the payments provided for under it it makes no provision either for paying for the ice house, the corncrib or the stable; nor is the corncrib or ice house mentioned in it Now Mr. Reeve swears that his original bid had included $250 for the cost of the addition to the barn, and that when he and Mr. Windolph were going over the items on which he could make a saving in order to reduce the price, Mr. Windolph suggested that it was not necessary to put so much money in the barn, but that he could use the old materials that necessarily would come out of the house in making the alterations for making the additions to the barn; and that thereupon Mr. Reeve reduced his estimate for it to $50 upon the express understanding that he should not be obliged to use any new material and that the detail should be simple, and he swears and proves that when it came to the building of the barn he was obliged to use almost entirely new material of an expensive character at a considerable expense. Besides, he was obliged to ceil the sleeping room with ceiling boards. Then Mr. Reeve swears, which Mr. Windolph, however, denies, that he was to be relieved entirely from the building of the ice house and the corncrib. Now we have seen that these two items are not mentioned in the written contract, and that the specifications, confessedly, did not, strictly speaking, form a contract betweenthe parties except so far as they relate to the quality of the work to be done upon the house. Enough has been said to show that it would be inequitable for Mr. Isaacs to hold Mr. Reeve to a strict compliance with the terms of these specifications. When Mr. Reeve, about the 1st of May, was notified that he was in arrear and that the owner would act under a provision of the contract which gave him power to take the matter into his own hands, he found himself unable financially to complete the contract. In fact, I am entirely satisfied that the result of the desire of Mr. Isaacs to get a house with certain characteristics for a certain sum of money resulted in the contract being taken by Mr. Reeve at altogether too low a price. This abundantly appears by a footing up of the materials which were purchased by Mr. Reeve and went into the house in addition to the moneys actually paid to laborers by him or on his account. In fact, I am satisfied that with the very best management the work could not have been done for the price he named. In this embarrassing state of affairs he called upon his brother, William D. Reeve, an experienced builder, to see Mr. Windolph and look the matter over. Mr. William D. Reeve called upon Mr. Windolph in New York, and was informed by him that he thought the carpenter work could be finished for $200. He then went out with Mr. Windolph to Madison and they together looked the work over in detail and made an estimate of what it would cost to finish the carpenter work, and stated to Mr. Windolph he thought it could be done for from $250 to $300, and Mr. Windolph agreed with him. But Mr. William D. Reeve did not undertake the job of finishing it on his brother's account and look to his brother for pay, working under the contract He was not asked to take the job, as Wood & O'Donnell afterwards took it. The job was then finally thrown up by Benjamin F. Reeve, and the work was put out to Messrs. Wood & O'Donnell upon an understanding that they were to do it by day's work as cheaply as they could, and charge for their services 10 per cent. on the cost. The work was proceeded with and finished by them, and their bill is $1,331.16, to which is added $134 for 10 per cent. on the work, making $1,465.16. The items are given. For their carpenter work labor $411.08; and for their materials $285.11, making $600.19.
The questions to be determined arise, first, out of this Wood & O'Donnell bill, and other items charged by Mr. Isaacs against Mr. Reeve; and, second, out of Reeve's bill for overwork. We will consider them in that order.
Some of the items composing Wood & O'Donnell's bill may be readily disposed of. A considerable sum—$58.75—is charged by O'Donnell for his own attendance at the place; also for horse hire, in addition to the 10 per cent. which he charges. He swears that he did not work with his tools or hands, but that the charges are simply for attendance. I think they cannot be allowed as against Reeve, but that the 10 per cent. was intended to cover that very service.
The next is a charge for $350 for plumbing and tinning. That was done by the same contractor who had taken it as a subcontractor under Reeve, and he simply finished his contract. That item is admittedly right. But I do not think that Mr. O'Donnell is entitled, under his contract, as against Mr. Reeve, to 10 per cent. on that, because he is a carpenter; and that, as I have remarked, was simply the finishing by the plumber of the work which he had agreed to do under Mr. Reeve.
The next item is for grading,—$50. That was done by contract, under, as is claimed, two clauses in the specifications. On the fifth page of the specifications, under the head "Excavation": "Do all excavating and refilling necessary, and finally grade to house." And at page 16: "Carpenter shall remove all surplus earth and rubbish, leaving the building and premises broom clean, and ready for occupancy." The details of just what the grading actually done consisted of were not given. The mason who did the excavation swears that the whole excavation was done for $26, and that it could not possibly have cost as much as $26 to level off the earth so excavated. His estimate, however, did not include the ice house. But, taking the evidence altogether, I am satisfied that there must have been grading included and paid for in that $50, not properly included within the two clauses of the specifications referred to, which, in my judgment, must be confined to simply scraping back the earth which was piled around the cellar and smoothing it down. I shall reduce that item to $25.
The next item is painting,—$180.94. There is some of this work—$30.94—claimed to be extra work, to which reference will be made directly; but the work was done by the same painter who had the original job, and it was simply the carrying out of his contract. I do not think that O'Donnell should be entitled as against Reeve to a 10 per cent. allowance on that.
Part of the work of the mason and the painter included in their bills paid by Wood & O'Donnell, and part of the work of the latter, and going to make up the $1,465.16, was the cost of putting a brace in the cellar under a partition which had sagged, and had cracked the walls above it and broken the trimmings, rendering it necessary to jack up the house at that point, and to patch the mason and wood work, and to repaper the wall. The right to charge that repair to Mr. Reeve is based upon a clause in the specifications as follows, under the head of "Alterations": "The contractor is to properlybrace and support all walls where directed." The plans do not show any support under this partition, but leave it without any; and it is admitted that no direction was ever given to Mr. Reeve to put a support there. The sagging took place, as I understand the evidence, after Reeve had abandoned the building, or at least had not shown itself at that time. Under these circumstances I think he ought not to be charged with the cost of restoring the walls where they had cracked, and the amount of the cost of that work of restoration must be deducted from Wood & O'Donnell's bill, and the charge was faintly supported by counsel. The items are: Papering, $30.94; mason, $11.20; carpenter, amount not proven. He should, however, be charged with the work of putting in the support, the cost of which was trifling in comparison with the work of restoration.
The repairs put upon the old part of the stable is another item of contention. Nothing on that was done by Mr. Reeve, and Messrs. Wood & O'Donnell did what amounted to making complete new stalls for the horses, with new flooring and drip trough. The flooring was somewhat dilapidated, and the partitions between the stalls were too low, so that the horses' heads came together. Complete new partitions were put in, and new floors. Now, it is admitted that Mr. Reeve was to use old material for this purpose, and I am satisfied that Mr. Windolph promised him, in order to reduce the cost of the building, to make all those unspecified details as light as possible. I think he should not be charged with the full cost of those repairs to the old stable, and with not more than half of them. So with regard to the cost of the ice house and corncrib. I think he should not be charged with those. As we have seen, they are not mentioned in the contract proper, and that casts the burden on Mr. Isaacs to show that they were included within the actual parol contract. This he does by producing the mention of them in the specifications; but under the evidence, as we have seen, the specification did not in fact contain the contract between the parties; and Mr. Reeve swears positively that they were to be dispensed with, and I think that the contrary evidence is not sufficient to overcome his denial. The proof shows that the cost of the ice house was $31, and the materials for the corncrib $22. I estimate the labor on it $8, and allow $30 for it.
Part of O'Donnell's charges is for furnishing blinds for all the windows of the house. This is claimed under a clause on page 11 of the specifications, as follows: "Outside shutters for new windows, except those on hall and dormers." It will be seen at once that these do not include rolling blinds, which are more expensive than shutters, and does not cover shutters for the old windows. But the fact is that new blinds were procured for nearly all the windows in the house, as well new as old, and their cost is included in the $1,465.16 item. The proofs show that when the alterations were commenced the old blinds were taken off of the old windows, and stored in the stable, and Mr. O'Donnell says that they used such of them as were capable of being used, and furnished new where they were lacking for the old windows. This was clearly not within the contract, except to the extent mentioned in the clause above recited.
Another item of complaint of Mr. O'Donnell's bill is that a great deal of time is charged for which was spent in scraping the hardwood floors for the final touch of the painter. It is proven by the complainant that when this work came to be done—which was some time in June—the floors were in a bad condition from not having been properly protected by paper from dirt and gravel being carried in on the men's shoes. To determine whether Mr. Reeve should be charged with the whole of this cost it is necessary to take into consideration the circumstances. The contract in this case was signed on the 17th of February, and provided that the building should be completed on the 1st day of May. Most of the work, therefore, was to be done in the winter time and in the stormy month of March, and was necessarily subject to the delays due to the inclemency of the weather. No clause was put in the original contract providing for penalty in ease of delay, but a supplemental contract was made between the parties and filed on the 9th of April providing for such penalty. When the 1st of May arrived, the building was not quite completed. Reeve left it about May 7th. It was the 17th of May before Messrs. Wood & O'Donnell commenced to finish it, and their whole work was done in about a month. But Mr. Isaacs, relying upon the house being finished on the 1st of May, made arrangements which made it almost imperative that he should occupy it on that day or shortly afterwards. Now, some of the delays which occurred in the work I think Reeve is not responsible for. In the first place, the old roof was to be taken off of the part of the house not entirely destroyed, and a new roof put on, and the architect would not permit him to do that work when the weather was threatening, and he was somewhat delayed by that. In the next place, the architect insisted on the stable being finished as rapidly as the house, and required Mr. Reeve's foreman to take mechanics away from their work on the house to build the new stable, thus interfering with him in his mode of conducting work under his contract. In the next place, the question of the flooring came up, and Mr. Reeve and Mr. Isaacs and his wife, and I think the architect, went to Green's lumber yard in Madison, and there picked out some well-seasoned flooring, which they agreed they would permit Reeve to use, although notquite so narrow as the specifications required, and under that agreement the flooring was actually delivered at the house, and was about to be laid, when Mrs. Isaacs changed her mind, and refused to permit it to be laid, and it was all carted back to the lumber yard, and lumber of the required width—then difficult to obtain—was obtained and put down. This caused a further considerable delay. For these reasons I think that Mr. Reeve was not responsible for the delay in the work of the house whereby it was not substantially finished on the 1st of May. This is a different question from his failure to complete the house and throwing up the job. Very soon after the 1st of May, and before Reeve left, Mr. Isaacs moved a part of his furniture into the house, and at his request Mr. Pulver, the foreman, took up the paper and swept the floors, before the painter had treated them. Isaacs moved in and commenced to live there about the 21st or 22d of May, some time before it was finished. Then Mr. Reeve had nothing to do with the heating apparatus,—the placing of steam heat pipes and radiators throughout the house. This was done by Mr. Isaacs himself by special contract with a steam-heat fitter, and before Mr. Reeve had thrown up the job, as I recollect the evidence. The beater men took up the floor covers. Now the weight of the evidence is clear that the floors were at one time fully protected, and there is good reason to believe, and some proof to the effect, that in moving in the new furniture, and in putting in the steam-heating apparatus, and moving into the house before it was finished, this protection was disturbed and corn, without the fault of Mr. Reeve. I think, under these circumstances, that Mr. Reeve should not be held responsible for the whole of the cost of scraping and taking out the grit from these floors, and some allowance must be made him on that account.
Another small item is a charge of $6.43 paid to the mason for work at the base of the cellar walls of the old house. As I understand his evidence, the cellar of the part which was left standing was deepened several inches, so that its bottom was lower than the original foundation of the house, with the result that the water, in heavy rains, ran down the outside of the foundation and under it into the cellar. This charge was for cementing at the sides between the new cellar bottom and the old foundation to keep this water out. I am unable to see how that was part of Mr. Reeve's contract, and I feel constrained to disallow that item.
Other objections are made to work by Wood & O'Donnell in taking down some of the door trimmings, and perhaps window trimmings, in one of the upper floors, and replacing them. Their reason for doing that was the allegation that the original job was not done in a workmanlike manner. The evidence satisfies me that in the finishing of this job Messrs. Wood & O'Donnell, under instructions from Mr. Windolph and the new specifications and plans prepared by him (which I am sorry were not produced before the court), finished the building in a style and on a standard of excellence which was not in accordance with the letter and spirit of the verbal agreement between Mr. Windolph and Mr. Reeve when he was induced to reduce his bid to the amount fixed upon, namely, $3,520. I am entirely satisfied that Mr. Windolph promised Mr. Reeve to ease up on him in matters of detail and not of great importance, and that Mr. Reeve relied upon that promise, and that when Wood & O'Donnell were put on the job they were required, as I have said, to finish it on a standard quite above that agreed upon between Mr. Windolph and Mr. Reeve. But the objection just mentioned, and others of a like character, which I will not mention in detail, are not, in my judgment, sustained by a sufficient weight of evidence to justify me in making any allowance to Mr. Reeve on that account.
Two other items of contest between counsel I decide against Mr. Reeve. One is the item for wire screens. This is specially inserted in manuscript in the contract and also in manuscript in the otherwise typewritten specifications. Counsel for the defendants contends that it was an omission. Counsel for the complainant contends that it was an addition, and I agree with him. The other is a matter of hardware. The specifications contain a clause which means as follows: that the contract price includes $50 for the hardware of the doors. The result is that the owner may, at his option, put in such hardware as he chooses, and have a deduction from the contract price of $50. Counsel for, the defendant took just the contrary view. I agree with the counsel for the complainant. But complainant must not charge for the actual cost of the hardware which is included in Wood & O'Donnell's bill.
The next item is the charge of the architect of $100 for new plans and specifications and his own supervision of the work. As I recollect, no inquiry was made of Mr. Reeve when on the stand as to what had become of the plans which he had for use at the building. Naturally they would be left there, and I should be much surprised to hear that either Mr. Reeve or his foreman, Mr. Pulver, took them away. But, be that as it may, if Reeve did have them in his possession, and they were not immediately accessible to the architect, no demand was made on Reeve to hand them over. Mr. Windolph justifies himself for not making such demand on the ground that he had found that Mr. Reeve was a dilatory man. He immediately put his clerk to work to make from the original draft in his office a complete new set of plans for the use of Wood & O'Donnell in finishing the building, and for this and his supervision he charges $100, and the complainant chargesthat against Mr. Reeve. Now, I think Mr. Reeve ought not to complain of suffering somewhat by reason of his failure to complete this building, but I think the charge of $100 is excessive, and that $50 will be ample compensation to Mr. Windolph under the circumstances.
This brings us to the charges for extra work by Mr. Reeve against Mr. Isaacs. I think Mr. Reeve's charges for the extra work are inflated from beginning to end. The most important item is the work done on the barn or stable. Mr. Reeve in his bill of items claims that he put between $100 and $500 of new material in the barn. I cannot believe this, but I think the claim is one of merit. I have already remarked on the absence of any plans or specifications for the building of the barn, and on the promise made by Mr. Windolph to make it as simple as possible, and that Mr. Reeve might use old materials in it The entire specifications in that respect are included in these words, which I repeat: "Build addition to barn 18'0"x20'0" with cellar 6'0" high; carriage house on ground level, and coachman's room over same; use old materials, and repair barn." When it came to the actual work, Mr. Pulver, Reeve's foreman, tells us that there was an entire want of old materials which would satisfy Mr. Windolph's demands, and that very little if any were used in it; that Mr. Windolph instead of being satisfied with cheap vertical barn boards for a side covering, required the best novelty siding, and ceiling to the walls of the sleeping chamber, and other matters in a style for a first-class stable. Mr. Reeve swears that in the preliminary figuring upon the' cost, in the interview between him and Mr. Windolph, he concluded that his work on it could be done for $50. I do not recollect that this was denied by Mr. Windolph, and I think it would be inequitable and unjust for Mr. Isaacs to refuse to allow Mr. Reeve for the increased cost on the stable due to Mr. Windolph's requiring it to be made of new and such expensive materials and in such an expensive style. I will allow Mr. Reeve $200 for that extra work, and think I have erred, if at all, in favor of complainant.
The next item is, "enlarging kitchen one foot across the whole side." Mr. Windolph says that this was done as an offset against the failure of the mason to put into the outside wall of the cellar wash brick according to the specifications. The cost of the enlargement I think, according to the evidence, would be at least $35 as against $115 charged by Reeve, which latter I think is extravagant. Reeve was not recalled to deny Mr. Windolph's statement, and while it seems a severe penalty to impose upon Mr. Reeve for the failure of his mason in a very trifling matter, I shall decline to allow that.
The next item is for new parlor sliding doors, which Mr. Pulver is positive were ordered by Mr. Windolph, and Mr. Windolph denies it. In point of fact they were ordered and inserted in place of the old sliding doors. I think I must take Mr. Pulver's evidence on this, because I do not see what motive he would have to incur that expense unless he had an order. The cost of those doors was not given to my satisfaction. The charge is $30. I will allow for them, but cannot now fix the amount.
Then there is the cost of seven doors specially ordered after a special pattern, in place of those kept in stock by the manufacturers, which stock doors are notoriously cheaper. This order was undoubtedly given, and Reeve is entitled to the difference in cost; but I cannot fix the amount from the evidence.
The next item is extra cost in the building of the front stairs over and above what Mr. Windolph promised Mr. Reeve. Windolph admits that he promised to simplify the detailed plans, and in his estimate of how the bid was reduced from $5,500 to $3,520 he makes a large allowance for that item; but he says he did simplify the plan of the stairs and reduced the expanse. I am in doubt on this point, I will give the benefit of the doubt to the complainant, and allow nothing.
Then there is the question of extra trim for the doors, windows and base boards used in the second and third stories. The allegation of Mr. Reeve and Mr. Pulver is, and it was supported by Mr. O'Donnell, who was called upon to make a. second bid, that the old trim, base, etc., from the first floor should be used in the second and third floors. I think Mr. Reeve should be allowed something for the item, but I am unable to determine the amount The same remark applies to the claim for new doors ordered in place of old ones first agreed upon. An allowance should be made, but I am unable to determine the amount.
Another item of extra work arises out of the finishing of the servants' bathroom and water-closet in the basement. That was located in one corner of the cellar, and was formed on two sides by the outside walls of the building, and on two sides by a board partition. The only reference to that in the specifications that I can find is as follows: "Build cellar partition work indicated on plan with planed 7/8"x6" matched and beaded, tightly fitted at head to floor above." The plans show the board partition on the two sides, but do not give the least indication of any ceiling, by boards or otherwise, against the cellar walls, or of any flooring. The specifications require that all the cellar floor should be made in the usual way of cement. Mr. Windolph required Mr. Reeve to ceil the walls on the two sides, and floor it I can find no warrant for this work. The specifications and plans, in my judgment, are incapable of a construction to warrant this expense, and the charge of $6 for ceiling and $10 for flooring must be allowed.
I state the account thus:
| Credit Reeve: | |
| Contract price | $3,520 00 |
| Extra on barn | 200 00 |
| Extra window | 8 00 |
| Ceiling servants' bathroom | 6 00 |
| Flooring " " | 10 00 |
| Sliding doors, special instead stock doors (to be determined) | |
| New doors instead of old doors upstairs (to be determined) | |
| New base trim instead of old up tairs (to be determined) |
| Charge Reeve: | |
| Cash payment | 21,320 00 |
| Paid laborers | 218 26 |
| Hardware | 50 00 |
| Architect | 50 00 |
| Electric switches | 7 00 |
| $1,615 26 |
| Wood & O'Donnell | $1,465 16 | |
| Less: | ||
| Corn crib | $30 00 | |
| Ice house | 31 00 | |
| Painter on sag | 30 94 | |
| Mason " " | 11 20 | |
| Carpenter on sag (to be determined) | ||
| Mason on cellar | 6 43 | |
| Grading | 25 00 | |
| 1/2 cost repairing stable (to be deter-mined) | ||
| Extra blinds (to be determined) | ||
| 1/2 cost scraping floor (to be determined) | 36 32 | |
| Items personal serff-ices by O'Don | 58 75 | |
| Total | ||
| 10 % on above | ||
| 10 % on plumbing | 35 00 | |
| 10 % on painting | 15 00 | |
| Total charge |
If counsel cannot agree on the Items the amounts for which are left blank, there must either be a reference to a master, or evidence of experts who shall examine the work, to be produced before me.