Opinion
January 17, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from an order of the Rensselaer County Court directing a final judgment after trial, without a jury, dismissing appellant's complaint and finding for respondents on their counterclaim in the amount of $1,752.56 less a setoff of $617. In 1954 respondents, desirous of purchasing a home, approached appellant. Appellant told respondents that he could build any home they selected on Long Island for $2,000 above the cost quoted for the same house on Long Island. Respondents selected a home costing $15,900 and appellant informed them that he could build it for $18,000. Respondents selected a lot from among several shown to them by appellant and construction commenced in late June of 1954. On September 20, 1954, after a substantial portion of the house had already been completed, a contract was entered into between the parties setting out construction specifications and calling for a purchase price of $20,000 rather than $18,000, the figure originally agreed to, due to certain extras desired by respondents. This contract established a completion date of October 15 but the house was not completed on this date. Respondents became anxious to move in and when they were told by their landlord that they had to vacate their apartment by December 15, 1954, they pressed for a closing. On December 2, 1954 a closing was scheduled at the office of one Carl Martin, Esq., who apparently represented both the respondents and appellant for the purpose of consummating the transaction. Appellant did not appear and respondents gave Martin checks aggregating $16,800 which with the down payment added made a total payment of $18,800. Respondents, however, instructed Martin to withhold delivery of the checks because they wanted an itemized statement from appellant and all of the work had not yet been completed. Respondents assert that on the evening of December 3, 1954 Mr. Bloom met with appellant at his home at which time Mr. Bloom and appellant agreed to modify the contract of September 20 by reducing the total purchase price to $19,417, $18,000 for the basic house and $1,417 for extras, of which $2,000 was credited as having been paid leaving a balance due of $17,417 or $617 more than respondents had given to Martin. A statement dated December 3, 1954 was produced by respondents which Mr. Bloom testified appellant gave to him on December 3 and which corroborates this modification but, the statement, although typed on stationery of Dunn Garden Apartment, Inc., was not signed by appellant. Appellant denies any such meeting and states that the statement in question was prepared by his bookkeeper while he was sick and that the bookkeeper erred in twice subtracting the $2,000 down payment and that thus the actual purchase price should have been $21,417. The bookkeeper who allegedly made the statement was never produced as a witness. The deed signed by appellant presumably originally recited $20,000 as the consideration, but Martin testified that subsequent to the conference between appellant and Bloom and after appellant had authorized him to deliver the deed for $18,800, he reduced the consideration recited in the deed to $18,800. On December 10, 1954 respondents took possession. Immediately defects were noticed, principally that the cellar and den were not dry, the den was inadequately heated, aluminum storm windows and doors called for by the contract were not installed, the doors became warped because weather stripping required under the contract had not been supplied and the sidewalks crumbled under normal wear and tear. Respondents protested to appellant but despite some attempts by appellant to correct the seepage to the cellar and the heating problem in the den, none of the defects were ever satisfactorily corrected by appellant nor were the storm windows or doors or weather stripping supplied. The court below believed respondents and found (1) the agreed purchase price to be $19,417 of which all but $617 had been paid; (2) appellant was liable for breach of contract or express warranty in a total amount of $1,752.56 for the following defects and in the following amounts: (a) aluminum storm windows and doors — $558.56; (b) sidewalk — $250; (c) heating in den — $350; (d) weather stripping — $94; (e) seepage in basement and den — $500. Appellant urges as its first ground for reversal that the trial court should have excluded any evidence tending to vary the contract price set on September 20, 1954 on the grounds that such evidence was inadmissible under the parol evidence rule. We cannot agree. The parol evidence rule excludes only prior or contemporaneous oral agreements that would modify or contradict the agreement in written form and thus clearly does not affect subsequent oral modifications which is what we are here involved with ( Martin v. Peyton, 246 N.Y. 213). There is no dispute by respondents as to the terms agreed to on September 20. They rely solely on the modification of December 3, 1954. Appellant also attempts to invoke the Statute of Frauds citing Hill v. Blake ( 97 N.Y. 216). Even assuming the Statute of Frauds were here applicable, which we do not believe it to be, appellant did not raise the statute as a defense at the trial below and thus is deemed to have waived its protection ( Wikiosco, Inc., v. Proller, 276 App. Div. 239). As a second argument for reversal, appellant urges that the court erred in granting respondents judgment on their counterclaim because the work was not guaranteed under the contract. Appellant asserts that since the only guarantee in the contract is as follows: "The seller agrees that he will and hereby does guarantee for a period of one year from the date of the delivery of the deed the heating system installed in the premises and that he will and hereby does guarantee that the cellar of the building on the premises will be dry and free from water flowage or seeping for a period of one year from the date of delivery of the deed" it is not liable for any of the other defects which arose. Thus appellant apparently does not dispute the recovery for the seepage in the cellar and den or the unsatisfactory heating in the den but only for the aluminum storm doors and windows, and the defective sidewalk. Actually as to the weatherstripping and aluminum storm doors and windows there is no allegation of defective workmanship but that there was a failure to perform under the contract in not providing them. In our opinion, assuming the admissibility of Martin's testimony concerning the storm windows and doors, see infra, the record supports the determination of the court below that the parties intended that appellant provide weather stripping and supply as well as attach the storm windows and doors as part of the contract. The record also supports the determination that it was appellant's defective workmanship which resulted in the crumbling of the sidewalk. This faulty construction amounted to a breach of contract for which respondents have a right to recover, even without a specific guarantee. The court below correctly assessed damages at the market price of completing performance or correcting the defects ( Bellizzi v. Huntley Estates, 3 N.Y.2d 112). Appellant's additional contention is that Martin's testimony should have been excluded under the attorney-client privilege. Martin's testimony is very compelling in respect to the meaning of the word "install" in reference to the aluminum windows and doors and the alteration of the recited consideration in the deed. Without deciding if in fact Martin represented both appellant and respondents, it is sufficient to point out the communications between Martin and appellant concerning which Martin testified were not intended to be confidential and were thus not privileged (Richardson, Evidence [8th ed.], § 430). Order and judgment unanimously affirmed, with costs.