Stewart v. Newbury,

220 N.Y. 379 (1917)

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Nature of the Case

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Facts

Stewart (P) contracted to do excavating for Newbury (D). Nothing was said in writing about the time or manner of payment. P claimed that D orally promised to pay in the 'usual manner'; 85% of payment for work completed each 30 days or at the end of the month, with 15% being retained until completion of the work. D denied making this payment promise. Work began in July and ended in September when D refused to pay the first bill, P stopped work. Letters and phone calls did not resolve the problems. P claims that D refused to permit him to perform the rest of his contract, insisting that the work already done was not in accordance with the specifications. D claimed that P voluntarily abandoned the work after their refusal to pay his bill. P sued for the amounts due. The trial judge instructed the jury that if no agreement for payment had been made, P could expect payment at reasonable intervals and that if it was not understood that payments were due monthly and if payments were not made, P could abandon work. Judgment was given to P and D appealed.