63 N.Y.S. 179 | N.Y. App. Div. | 1900
The plaintiff seeks to recover the balance due upon a contract for ' furnishing materials and building a house for the defendants. He avers in the complaint that the price to be paid was §2,373 ; that he has fully performed upon his part according to the specifications contained in the contract, and .that a balance of §375 is still unpaid and due him thereon. He also claimed for some extra work done thereon. The answer denies that the plaintiff has performed on his part, and sets forth many instances wherein the work varies from the specifications, and many where work required by such specifica- • tions has not been properly done, and some where it has not been done at all. It also, by way .of counterclaim, demands damages for such failures and omissions.
The referee finds, as a fact, that the plaintiff has substantially performed the contract on his part, and allows him to recovei; for the balance due, and also for some extras, less, however, the sum of ninety-nine dollars and fifteen cents allowed the defendants as a counterclaim for damages on account of omissions and bad work.
The evidence discloses many instances wherein the work is. not performed in accordance with the requirements of the contract —
This failure to perform is, however, sought to be excused by the plaintiff upon the ground that all such departures and omissions were sanctioned and acquiesced in, as the work progressed, by the defendant or his authorized agent; and evidence was given, under the defendant’s objection, tending to establish such fact. The referee, however, has made no distinct finding upon that question. He seems to have based his decision upon the theory that the contract was substantially performed. And yet, having admitted evidence of an excuse for non-performance according to the written contract, it is quite possible that the substantial performance to which he refers is a performance in accordance with .the amendments and. changes which the plaintiff claims were from time to time made therein.
The objection was taken by the defendants that evidence of any such changes was inadmissible under the complaint. That, under an averment that the contract had been fully performed, the plaintiff was not at liberty to prove a subsequent modification of the contract, and a performance in accordance therewith. This objection was well taken. ( La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380.) And as the admission of such evidence has in all probability influenced the referee in his decision, it was reversible error to receive it.
The plaintiff insists that this issue was fairly in the case, because it was presented by the reply to the counterclaim in defendants’ answer. But the reply, fairly construed, does not present any such issue. It refers entirely to a change in the written specifications, and not to the work done by the plaintiff. The specifications, as first drawn, were changed by consent of both parties before the contract was executed, and as so changed were a part of and annexed to the contract set forth in the complaint. And the evidence objected to tended to show an excuse for not performing according
Moreover, I am not entirely satisfied that any of the substantial omissions and departures from the contract were authorized' by the defendant. He strenuously denies that they were, or that the foreman Cain had any authority to speak for him thereon..
For these reasons I conclude that the judgment must be reversed.
All concurred.
Judgment reversed upon the law and facts, referee discharged, and a new trial granted, with costs to the appellant to abide the event.