On appeal from the Supreme Court.
For the plaintiff-appellant, Rabinowitz & Rabinowitz.
For the defendants-respondents, Lehlbach, Johnson & Ormond.
The opinion of the court was delivered by
WELLS, J. This is plaintiff's appeal from a judgment of the Supreme Court, affirming a judgment of no cause of
action entered in the District Court of the Second Judicial District of the county of Essex in favor of the defendants.
The agreed state of facts show that on December 22d, 1933, the defendants, Behringers, as owners, and the Phoenix Building Company, hereinafter called the contractor, entered into a contract for the erection of a dwelling at Essex Fells. The contract price was originally $10,200, and was later supplemented in the amount of $278 for extra work, making a total of $10,478. This contract was duly filed in the office of the clerk of Essex county.
As part payment of the contract price, the defendants were to convey to the contractor the equity in certain premises known as No. 54 Hillcrest road, West Caldwell, of an agreed value of $3,200; balance of $7,278 in cash. Payment was to be made under the terms of the contract as follows:
1. Upon the completion of a certain portion of the work, a certificate of the architect was to be issued showing the amount then due. There was then to be paid to the contractor the difference between the amount certified and $3,200.
2. On the last day of each month thereafter an architect's certificate was to be issued, showing the value of labor and material furnished for that month. Of this amount the contractor was to receive eighty-five per cent., plus any sum (fifteen per cent.) withheld from the amount certified as due the previous month.
3. Final payment was to be made within thirty days after issuance of the architect's certificate of completion, and was to consist of the "deeding of the Hillcrest road property" by the defendants to the contractor as above mentioned.
On October 1st, 1934, the contractor and the plaintiff, Wilkinson, entered into a subcontract for certain tile work to be done on said dwelling, at an agreed price of $500. The plaintiff completed his work as stipulated, and had been paid thereon the amount of $50 at the time this action was instituted.
In accordance with the general contract, the defendants paid prior to December 15th, 1934, to the contractor $6,001.33. There was also paid ...