Otis Elevator Co. v. Brainerd

ALLEN, P. J.

Appeal by defendant from a judgment and an order denying a new trial.

The trial court finds that the defendant entered into a valid contract with Graham & Eaton, for the construction of a building according to certain plans and specifications. Plaintiff as subcontractor entered into a contract with the original contractor for the installation of an elevator and engine according to such plans and specifications, and was to he paid for as follows: One-half on delivery of engine, one-fourth on the completion and acceptance of said elevator, one-fourth thirty-five days after completion and acceptance thereof. That plaintiff' furnished all materials and labor and com

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pleted the installation of said elevator and engine on or about December 15, 1905. Defendants Graham & Eaton paid all the contract price except the thirty-five day payment, which remained unpaid. That within ninety days after completion of the building plaintiff regularly filed its notice of lien as required by the statute; that no notice of completion after actual completion was ever filed and recorded by the -owner; that when said notice of lien was filed the defendant had in his hands a sum applicable to the payment of liens more than sufficient to liquidate plaintiff’s claim. A decree ■of foreclosure was accordingly entered by the court.

There can be no question but that the findings in the record support the judgment. The only matter to be considered is as to the correctness of the findings. It is in evidence that a notice of completion was filed and recorded by the owner on October 28, 1905. It is also in evidence that the installation of the elevator in accordance with the specifications was a prerequisite to the completion of the building. That when said notice was filed the open front of the elevator hatchway with the doors, styled “the grille,” as well as the annunciator, had not been put in the basement floor, and without which grille it was unlawful under the ordinances of the city to operate the elevator; that the delay in completing the elevator in this regard was occasioned by the action of the architect of defendant, who requested plaintiff to omit such grille work in the basement until an opportunity was afforded to confer with the city officials as to the character of grille work necessary to satisfy an ordinance of the city. By reason of this request the grille work for the basement was not ordered by the agent of plaintiff at the time that he ordered the other materials. Nothing further was said between the parties about this grille work, “except that plaintiff was to finish the elevator as originally intended.” The work connected with the grille in the basement would require the work of two men two days and would cost $75 to $80. The cost or time required to put in place the annunciator, which could not be placed or the wiring done until after the grille work was completed, is not made to appear. The architect testifies that when the elevator was completed he inspected it and notified plaintiff that it was all right. This was done the latter part of December, 1905. The contract provided for