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Stewart v. Newbury

Court of Appeals of New York
115 N.E. 984 (1917)



Stewart (plaintiff) contracted to do excavation and concrete work for Newbury (defendant), with payment to be made on a per-cubic-foot and per-ton basis, respectively. However, the written contract made no specification as to when payment was to occur. After working from July to September, Stewart submitted a bill. Newbury responded by letter that the bill would not be paid because Newbury disagreed with the content of the bill and because the work was not complete. Stewart stopped working on the building and sued Newbury. At trial, Stewart testified that after sending his bill, he had a telephone conversation with Newbury, confirming that payment was to be made “in the usual manner.” Stewart testified further that it was customary to receive payment for 85 percent of the work on a monthly basis. Newbury denied the phone conversation, and asserted that he was not obligated to pay Stewart’s bill since Stewart had not completed the work. The trial court instructed the jury that if the parties’ agreement was silent regarding the timing of payment, Stewart was entitled to payment at reasonable intervals, and Newbury’s refusal to pay entitled him to stop working and sue for damages. The jury returned a verdict for Stewart and Newbury appealed. The Appellate Division affirmed and Newbury appealed that decision.

Rule of Law


Holding and Reasoning (Crane, J.)

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