Sebring v. Pratt

The opinion of the court was delivered by Swayze, J.

Saiil and Kaplan recovered a judgment against Yidoni. The sheriff levied upon the sum of $500 said to be due from Pratt to Yidoni. She denied the debt and the sheriff brought this suit under chapter 115 of the laws of 1915. Obviously the only issue was whether Pratt owed Yidoni, and if so, how much. This necessarily depended on what the contract was between them, whether it had been performed, what balance, if any, was due. The trial judge, however, undertook to adjudicate that the contract price was too low and to fix what he thought was right, against the protest of the only party to the contract who had been brought into court. This was palpable error. The *394 judge could not malee a new contract. Pie also rejected a claim of Pratt for damages of $5 per day for delay in completing the work, as the contract itself provided. The delay was proved and the right of Pratt to recover was not denied, but the judge refused to allow her claim because she had failed to file a notice of recoupment. He did not point out what legal justification she could possibly have for attempting to recoup damages for Yidoni’s default against tlh.e sheriff of the county. If this were possible, we fear few men could be found to accept the office of sheriff, and those who did would face speedy insolvency. As we have said, the question was whether Pratt owed Yidoni, and. if so, how much? This was for the sheriff to prove, as he was the plaintiff seeking to recover Yidoni’s claim. Any evidence that showed that Pratt did not owe Yidoni was admissible, and in the District Court no formal pleading, not even a general denial, was required.

Saiff was allowed to testify that he did extra work outside of that called for in the specifications. This was objected to on the ground that no transaction between the witness and the original contractor was relevant or material. The objection should have been sustained. The fact that Saiff, a sub-contractor, did more work for Yidoni than the specifications called for could not enlarge the liability of the owner (Pratt) to the contractor (Yidoni).

We have stated only the essential points. We must not be understood by our silence to approve of the extraordinary procedure that was adopted.

Let the judgment be reversed and the record remitted for a new trial upon the issue we have stated. We follow reluctantly the usual rule not to allow costs on a reversal.