Jacob & Young v. Kent

230 N.Y. 239, 129 N.E. 889 (1921)

Facts

Jacob (P) built a home for Kent (D) and used pipe that was not specified in the contract. The pipe was to be all wrought iron pipe that was galvanized, lap welded, and known as standard pipe of Reading manufacture. D learned in March 1915 that some of the pipe, instead of being Reading, was the product of other factories. P directed the architect to do the work anew. The pipe that was in fact installed was similar. At that time almost all the plumbing was encased in the walls except in a few locations. Replacing the pipe meant demolition, at great expense, of substantial parts of the completed structure. P left the work untouched and asked for final payment but D's architect refused to give the required certification because the proper pipe was not used. P claimed that the pipe used was of comparable price and quality. P sued for payment on the contract. It was established that the omission by P was neither fraudulent nor willful. It was the result of oversight and inattention of P’s subcontractor. Reading pipe is easily distinguished from Cohoes pipe and other brands by the name of the manufacturer which is stamped on it in intervals of six to seven feet. D’s architect who inspected the pipe upon arrival failed to notice the discrepancy. P tried to show in court that even though the pipes were made by different manufacturers they were in fact the same things. That evidence was excluded and a verdict was directed to D. The appellate court reversed that decision and a new trial was ordered.