Opinion
July Term, 1898.
Judgment affirmed, with costs.
The plaintiffs and David Roche made a contract whereby the plaintiffs were to furnish Roche certain building materials for a house which the latter was erecting at Far Rockaway The complaint alleged that the plaintiffs furnished materials amounting to $4,963.38, and that Roche paid on account $4,203.94, leaving unpaid $759.44. The answer denied that the value of the goods exceeded the amount paid, and by way of set-off alleged that by the agreement between the parties the material was to be of "first quality," but was not all of such character, to the defendant's damage $958.44, the amount unpaid. The issues were referred, and the defendant Roche dying, the present defendant, executor of his will, was substituted as defendant. A large amount of evidence was taken, some of it tending to prove that the materials furnished were of first quality, and some of it tending to show that a part of them was of inferior quality, but there was only a simple question of fact involved. After careful examination of the evidence we see no reason to disturb the finding of the referee, who made a slight allowance for defects and found that the plaintiffs had substantially complied with their contract and furnished materials to the value of $4,909.09, and directed a judgment on that basis. All concurred, except Woodward, J., absent.