Murphy et al. v. Buckman

10 Citing cases

  1. Dahlberg v. Girsch

    157 Cal. 324 (Cal. 1910)   Cited 17 times
    In Dahlberg v. Girsch, 157 Cal. 324, 327 [ 107 P. 616, 619], our Supreme Court says: "Section 663 of the Code of Civil Procedure authorizes simply the substitution of the judgment that should have been given as a matter of law upon the findings of fact in a case where the judgment already given is an incorrect conclusion from such findings.

    It appears clear to us on principle that the owner having so elected cannot now successfully urge that the contractor cannot recover. A similar question was presented to the court of appeals of New York in Murphy v. Buckman, 66 N.Y. 297 . There was in that case a very similar provision in the contract, and the contractor having defaulted, the owner gave the notice and completed the building, expending therein a sum which added to what he had theretofore paid the contractor, was $778.90 less than the sum the contractor was to receive under the contract. This amount of $778.90 was awarded to a lien claimant who could recover it only in the event that the money was actually due to the contractor.

  2. R. A. Poe & Co. v. Town of Brevard

    94 S.E. 420 (N.C. 1917)   Cited 3 times

    There is well-considered authority elsewhere in direct support of the position. Robinson v. Chinese, etc., Benevolent Assn., 54 N.Y. Suppl. 858; White v. Livingston, 69 Appell. Div. 361, approved 174 N.Y. 539; Murphy v. Buckman, 66 N.Y. 297; Wilkinson v. Becker, 185 Pa. 225; 30 A. E. Enc. (2 Ed.) 1264. And decisions in our own Court are in full recognition of the general principle. Piano Co. v. Kennedy, 152 N.C. 196; Main v. Griffin, 141 N.C. 43.

  3. Comey v. United Surety Co.

    217 N.Y. 268 (N.Y. 1916)   Cited 47 times
    Refusing to interpret new contract, entered into after initial contractor's default, to evidence obligee's willingness to give away his right of action against the surety for excess completion costs

    It is not an element of the cause of action. What the plaintiff did in finishing the work was not done as the contractor's agent ( Murphy v. Buckman, 66 N.Y. 297); he did not elect to keep the contract alive; he treated it as repudiated, and claimed his damages for the breach. In this situation the contractual limitation must be held to be inapplicable.

  4. Hampton v. Christensen

    148 Cal. 729 (Cal. 1906)   Cited 28 times
    In Hampton v. Christensen, 148 Cal. 729, [84 P. 203], Mr. Justice Henshaw, speaking for the court, says: "Whatever may be said of other payments, this amount of money (thirty-five day payment) cannot lawfully be depleted or reduced to the injury of any such claimant"; that out of the completion payment the necessary cost to the owner or completion, in case of abandonment, must be taken.

    It is a perfectly legal contract which makes time of completion of its essence, and provides that the contractor, for a failure to perform in time, shall make good to the owner such loss as the latter may sustain thereby. More than this, it is a deduction or offset which, but for the Lien Law, the owner would have the unquestioned right to claim from the amount found due the contractor under the contract. Reference to the following cases will disclose that it is well settled that the owner is entitled to an allowance for damages for noncompletion; Mehrle v. Dunne, 75 Ill. 239; Murphy v. Buckman, 66 N.Y. 297; Millsap v. Ball, 30 Neb. 728, [46 N.W. 1125]. But the right of materialmen, artisans, and laborers of every class is to have a lien upon the property upon which they have bestowed their labor or furnished their material for the full value of the same, and this right is one solemnly guaranteed to them by the constitution of the state.

  5. Crouch et al. v. Gutmann

    134 N.Y. 45 (N.Y. 1892)   Cited 32 times

    While the condition of the carpenter work when the Wadsworths left it in July, was such as to indicate defects and omissions, the correction of which would cost $656.29, it may be observed that such defects upon such estimate of the cost to the amount of $439.29 were remedied through the action of the defendant taken pursuant to his right reserved by the contract, to furnish materials and workmen to proceed with the work and charge the expense to the contractor upon the failure of the latter to do it on three days' notice to him to that effect. This work having been done by the defendant in the exercise, by his election, of such right, he cannot effectually assert forfeiture in respect to the deficiency so supplied, but the Wadsworths were entitled to the benefit of the work thus produced and were chargeable to the defendant for the amount of the expense incurred by him in doing it. ( Murphy v. Buchman, 66 N.Y. 297.) When the application for the architect's certificate was made, this work had been done and the defects in the work to that extent removed, and in other respects the work could then have been made to conform to the specifications by the appropriation to that purpose of the sum of $216.71. This was the situation when the architect was requested by the plaintiffs to make certificate for payment of final estimate. If the work was then substantially performed as found by the referee, the conclusion was warranted that the refusal of the architect to give any certificate was unreasonable in the legal sense applicable to it for the purposes of relief. ( Nolan v. Whitney, 88 N.Y. 648.

  6. Larkin v. McMullin

    24 N.E. 447 (N.Y. 1890)   Cited 15 times

    In such case the work of completion by the owner is performed pursuant to the contract. ( Murphy v. Buckman, 66 N.Y. 297.) Also, where the contractor abandons the work by reason of default of the owner, who goes on and completes it. ( Graf v. Cunningham, 109 N.Y. 369.) And when the work is substantially performed by the contractor, the lien is effectual, subject to the right of the owner to recoup such damage as he may have sustained by the failure to entirely finish it. ( Heckmann v. Pinkney, 81 N.Y. 211.)

  7. Village of Canton v. Globe Indemnity Co.

    201 App. Div. 820 (N.Y. App. Div. 1922)   Cited 13 times

    The authorities quite uniformly hold as far as I am advised that a provision for liquidated damages in a building contract such as we are here considering should be construed as applying only to delayed and not to abandoned performance. ( Murphy v. United States Fidelity Co., 100 App. Div. 93; affd., 184 N.Y. 543; Brady v. Mayor, etc., 44 Hun, 511; Crawford v. Becker, 13 id. 375; Murphy v. Buckman, 66 N.Y. 297; Buhler Co. v. NewYork Dock Co., 170 App. Div. 486; 2 Williston Cont. [1920 ed.] ยง 785; Rainier v. Masters, L.R.A. 1916E, 1179; Shields v. Shields Construction Co., 81 N.J. Eq. 286.) The contract herein provides that on abandonment thereof by the contractor the plaintiff may itself at its option complete the work at the expense of the contractor.

  8. McGrath v. Horgan

    72 App. Div. 152 (N.Y. App. Div. 1902)   Cited 4 times

    But the plaintiff was guilty of total breach of the contract in deliberately abandoning the work, and this provision should not be construed as precluding the owner from recovering his general damages. ( Murphy v. Buckman, 66 N.Y. 297; McCready v. Lindenborn, 63 App. Div. 106.) The measure of his damages is compensation for the loss reasonably and proximately resulting from the breach of the contract.

  9. White v. Livingston

    69 App. Div. 361 (N.Y. App. Div. 1902)   Cited 4 times

    "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." It is also settled that when work is abandoned by a contractor, and is completed by the owner pursuant to a right reserved in the contract (as in this case), the owner's right to declare a forfeiture of the contract for non-performance is gone, the work of completion is deemed to be done under the contract and on account of the contractor, and the contractor becomes entitled to receive any balance of the contract price that may remain over and above the cost of completion. ( Murphy v. Buckman, 66 N.Y. 297; Graf v. Cunningham, 109 id. 369; Van Clief v. Van Vechten, supra.) When Mapes stopped work about January 23, 1896, Livingston, as already mentioned, procured from the architect and engineer the required certificates, and then notified Mapes that his employment as contractor was terminated, and that he (Livingston) would employ "other persons to finish said work and provide materials therefor."

  10. Beecher v. Schuback

    4 Misc. 54 (N.Y. Misc. 1893)

    The inevitable inference from the evidence is, that upon the abandonment of the work by the contractors, the owner chose to treat the contract as at an end, and proceeded to put his property in condition for profitable use. In Murphy v. Buckman, 66 N.Y. 297, the provision in the agreement being identical with that before us, the owner gave the three days' notice of election to complete the work himself, and so renounced the right to insist upon a forfeiture by the contractor. In Van Clief v. Van Vechten, 130 N.Y. 579, the owner in his answer counterclaimed an allowance for completing the building, and the evidence showed that he took possession and completed it pursuant to the contract.