On appeal from the Supreme Court.
For the appellant, Alfred L. Kettell (Nicholas S. Schloeder of counsel).
For the respondent, Philip J. Schotland.
The opinion of the court was delivered by
DALY, J. This is an appeal of the defendant Frederick C. Henn from a judgment of $8,938.34, entered against him upon a verdict for the plaintiff rendered in the Supreme Court, Essex Circuit. Plaintiff contracted in writing to do the plumbing and heating work in a building owned and being erected by the defendant Model Construction Company, Incorporated, and Frederick C. Henn, the present appellant, personally guaranteed the payment of the contract price. The guaranty of Henn is evidenced by writing attached to the contract. The action was against both Henn and the owner and the plaintiff recovered verdicts against both. Henn, alone, appeals.
The wording of the guaranty made by Henn was as follows:
"In consideration of Borus Waton, Incorporated, strictly complying with the terms and conditions of the foregoing agreement, Frederick C. Henn, made a party to this contract, does hereby undertake and guarantee the payments mentioned as the consideration for the performance of the work for the Model Construction Company."
The defense was that the work had not been performed strictly in accordance with the contract and that the contract had been altered so as to discharge the guarantor. The many alleged legal errors complained of by the appellant, throughout a record of over six hundred pages, are grouped together and reduced to seven points in his brief.
1. It is urged that the trial court erroneously submitted
to the jury the issue of substantial performance of the contract sued upon as against the guarantor although it was asserted in the guaranty that it was given "in consideration of strictly complying with the terms and conditions of the foregoing agreement." The trial judge charged that if the jury should find as a matter of fact that there was a substantial compliance with the contract then the plaintiff was entitled to recover. Carry the appellant's argument to the limit of his contention as to the meaning and effect of the word "strictly" as used in the guaranty and the guaranty would be unenforceable if there was a failure in some minor particulars in the performance of the plumbing and heating work -- perfection alone would satisfy. The plaintiff was entitled to recover from the owner if he proved a substantial performance of the work. Feeney v. Bardsley, 66 N.J.L. 239; Dyer v. Lintz, 76 Id. 204; Brawnworth v. Borough of Verona, 94 Id. 194. Surely the meaning and effect of the language employed in the written guaranty to the mind of the plaintiff -- as it would have been to the mind of any normal person -- was that if he performed his work for the owner as the law required him to do, under the contract between them, then Henn, the guarantor was bound to pay him, if the owner failed so to do; and surely the guarantor -- a lawyer of nineteen years' experience -- must have fully known that such was the understanding of the plaintiff under which he, the plaintiff, accepted the guaranty, and under the strength of which he proceeded to do the work. The contract of guaranty should be read with the building contract, and there is no suggestion of any reason why the guarantor should be entitled to demand any higher standard of work than the owner was entitled to demand. The trial judge was right in his charge in this direction.
2. The contention is made that there was a material alteration in the contract, and that such alteration discharged the guarantor. The original contract provided for changes with the written consent of the owner. With the consent of the owner, there was installed an Arco No. ...