Opinion
March Term, 1900.
Judgment affirmed, with costs.
This action was brought to foreclose a mechanic's lien, the defendants setting up an equitable defense, alleging a mistake in the contract between plaintiff's assignor and the defendants Milliken Brothers. The learned court decided the case upon the ground that "the disputed items for the marble treads and stairs to the roof" of the building were not included in the agreement between the parties. We have examined the evidence in the case, and while there is evidence which suggests that there may have been a mistake, we do not find any such preponderance of evidence as to warrant this court in holding that the learned court below erred in reaching the conclusion recited in the judgment. There is nothing in the language of the contract as construed by the specifications which are admitted to have been in view by the plaintiff's assignor at the time the contract was made, which indicates that the marble treads were to be furnished by plaintiff's assignor, and the parol evidence is not such as to justify this court in reading such a clause into the contract against the contrary decision of the court below, which had the parties before it, and was, therefore, peculiarly in a position to judge of the weight of evidence. Indeed it is conceded by the appellants that the contract did not include the marble treads, but it is urged that the contract was modified by a letter written by the defendants on the 22d day of January, 1896, in which it is recited that "we are advised by the general contractor to-day that the marble is entirely separate and not included in our contract. This refers to the treads of the stairs. We would like to see your Mr. Jackson in relation to this matter when the contract is finished. Of course it is understood that you included this work in your contract, but we understand, to offset a deduction, there is some extra casting on the front that you have to furnish." On the 13th day of February, 1896, the plaintiff's assignor made a formal acknowledgment of the receipt of the original order without mentioning the receipt of the letter from which the above quotation is taken, and there is little in the evidence to show that the plaintiff's assignor ever agreed to any modification of the contract or that he understood the original contract to include the marble treads or that the work was not performed in accordance with the contract as it reads. We do not think the defendants have sustained the burden of proof upon the question whether the original contract included the marble treads, and, if it did not, then there is nothing in the claim for rebate. The defense is in the nature of an equitable counterclaim, and it is for the defendants to show that a mistake has been made, that the original contract contemplated that the plaintiff's assignor should furnish the marble treads, for, unless this was the understanding when the contract was made, there is no ground for equitable relief. We find no errors in the admission or rejection of evidence; it was clearly not error to exclude evidence as to the custom of building contractors to make a deduction where work which was included in the contract is afterward not done, because it was not shown that the work here under consideration was included in the contract. The defendants have sustained no injury by reason of the exclusion, because the court holds that the marble treads were not included in the original contract, and the objection was sustained on the ground that "it does not appear at this present time relevant or competent." The judgment appealed from should be affirmed. All concurred.