Stewart v. Newbury

220 N.Y. 379, 115 N.E. 984 (1917)

 

RULE:

Where a contract is made to perform work and no agreement is made as to payment, the work must be substantially performed before payment can be demanded.

FACTS:

Appellants, partners in a pipe fitting business, hired respondent, a contractor and builder, to construct a building. Nothing was said in writing about the time or manner of payments respondent was to receive for completed work. Respondent commenced work in July and submitted a bill in late September for work completed. Appellants refused to pay the bill and respondent stopped work. A jury entered a verdict for respondent for the amount due for the work performed. On appeal, judgment was reversed and the case was remanded.

ISSUE:

Was respondent entitled to partial payment?

ANSWER:

No.

CONCLUSION:

The court agreed, holding that where a contract was made to perform work and no agreement was made as to payment, the work must be substantially performed before payment was demanded. Respondent had not substantially performed under the contract, therefore he was not entitled to partial payment.

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