CONTRACT PERFORMANCE, BREACH, AND REMEDIES
129 N.E. 889
23 A.L.R. 1429
(Cite as: 230 N.Y. 239, 129 N.E. 889)
Court of Appeals of New York.
Jan. 25, 1921.
The plaintiff built a country residence for the defendant at a cost of upwards of $77,000, and now sues to recover a balance of
$3,483.46, remaining unpaid. The work of construction ceased in June, 1914, and the defendant then began to occupy the
dwelling. There was no complaint of defective performance until March, 1915. One of the specifications for the plumbing
work provides that---- 'All wrought-iron pipe must be well galvanized, lap welded pipe of the grade known as 'standard pipe'
of Reading manufacture.' The defendant learned in March, 1915, that some of the pipe, instead of being made in Reading,
was the product of other factories. The plaintiff was accordingly directed by the architect to do the work anew. The
plumbing was then encased within the walls except in a few places where it had to be exposed. Obedience to the order meant
more than the substitution of other pipe. It meant the demolition at great expense of substantial parts of *241 the completed
structure. The plaintiff left the work untouched, and asked for a certificate that the final payment was due. Refusal of the
certificate was followed by this suit. The evidence sustains a finding that the omission of the prescribed brand of pipe was
neither fraudulent nor willful. It was the result of the oversight and inattention of the plaintiff's subcontractor. Reading
pipe is distinguished from Cohoes pipe and other brands only by the name of the manufacturer stamped upon it at intervals
of between six and seven feet. Even the defendant's architect, though he inspected the pipe upon arrival, failed to notice the
discrepancy. The plaintiff tried to show that the brands installed, though made by other manufacturers, were the same in
quality, in appearance, in market value, and in cost as the brand stated in the contract--that they were, indeed, the same
thing, though manufactured in another place. The evidence was excluded, and a verdict directed for the defendant. The
Appellate Division reversed, and granted a new trial.
 We think the evidence, if admitted, would have supplied some basis for the inference that the defect was insignificant in