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Krevolin v. Brown

Decided: June 9, 1952.

R. KREVOLIN & CO., INC., PLAINTIFF-APPELLANT,
v.
FRANCIS J. BROWN AND DOROTHY J. BROWN, DEFENDANTS-RESPONDENTS



Eastwood, Bigelow and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

The question raised by this appeal is whether the plaintiff substantially performed the contract entered into with the defendants. The Camden County District Court, sitting without a jury, decided, at the conclusion of the entire case, that the plaintiff had not performed the contract to the satisfaction of the defendants and, therefore, it was not entitled to payment and thereupon dismissed the action. The plaintiff appeals from the ensuing judgment.

The parties entered into a written agreement wherein the plaintiff "agrees to do work upon the defendants' premises, 344 North 41st Street, Camden, N.J., in accordance with the specifications hereinafter set forth" for the sum of $620. The specifications referred to in the contract read: "Install asphalt shingle brick shape on all exterior walls of house and exterior side walls of house. No shingles on porch."

The plaintiff contends that it fully performed the work required of it in the contract in a workmanlike manner and is, therefore, entitled to payment. The defendants contend that the plaintiff failed to substantially perform the contract and that they are relieved from all liability to the plaintiff.

It will be noted that the specifications hereinabove recited are very inadequate. Consequently, there is an implied agreement that the work will be done in a proper and workmanlike manner. Mayer Ice Mach. & Eng. Co. v. Van Voorhis , 88 N.J.L. 7 (Sup. Ct. 1915).

There was evidence before the court that the defendants, during the course of the work, objected to the type of workmanship and were assured that the plaintiff would correct it so far as they had come; that the job was completed without correcting the work complained of; that the brick siding was nailed directly to the house which was sheathed with German clapboards without any tar paper thereunder or baffle boards to which to nail the siding, thereby leaving many of the nails protruding and making the entire appearance of the outside of the house "wavey," rathen than smooth and even as it should have been. In addition to their own testimony, the defendants offered the testimony of one Mitchell Piontek, an experienced builder, who had examined the completed job and who testified that it was not a good workmanlike application of the siding and without objection, stated: "That is very flexible building, no doubt about being flexible. It calls for baffle board underneath each and every course to give smooth and sound job." "* * * I never seen it put on German siding without using paper or anything underneath it like they did"; that never in his 20 years' experience had he known of this particular type siding being placed on German siding without filling in; that if the contractor knew what it was doing, "they certainly would never use cornice like that, because there is special cornice used for that particular kind of siding, * * * I only use it on roofs, never seen it put on edge of house like that"; that "* * * due to the fact there was no baffle boards back there, naturally they can't drive the nails all the way in because if they did they would make ripples in the house look very conspicuous." The photographs offered in evidence are mute testimonial to the nonperformance of the contract. The plaintiff adduced testimony

that three different contracts were discussed with defendants and they chose the cheapest job and it insists that the work was done properly within the terms of the contract entered into. Strangely enough, on June 11, 1951, after the completion of the work, the plaintiff, in reply (copy of which was sent to the defendants) to a letter written to it by the Camden City Building Inspector, regarding a complaint received by him from the owners, stated:

"This work was started and partially completed to the satisfaction of the owners. When the work was about to be completed, the customers complained that they were not satisfied. Under the circumstances and according to the specifications the job was being done as well as possible; however certain adjustments could be made.

In your letter of the 5th, you requested that we inspect the job; which we did, and we spoke to Mr. Brown and explained that we are willing to do the entire job over to meet with the satisfaction of the Bureau of Building Inspection as well as himself. However, he refused permission to permit us to do any other work."

The testimony was conflicting and the trial court had the opportunity and advantage of observing the witnesses and was in a position to evaluate their credibility to a greater extent than an appellate tribunal. His findings of fact are entitled to great weight. The credibility of witnesses is an important consideration in the determination of factual issues. "While an appellate court is not bound by a finding of fact made by the trial court it is required to give due regard to the opportunity of that court to observe the demeanor of a witness and to judge of his credibility. In re Perrone , 5 N.J. 514, 523 (1950)." deVries v. The Evening Journal Ass'n. , 9 N.J. 117, 120 (1952); Gellert v. Livingston , 5 N.J. 65, 78 (1950); Rule 1:2-20; 4:2-6.

Of course, if the evidence establishes the fact that the plaintiff substantially performed its contract, "even though he has failed in some minor particulars, he is entitled to recover the contract price less what will be a fair allowance to the owner to make good the defects in the performance of the contract." Reese v. ...


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