17 N.Y.S. 849 | N.Y. Sup. Ct. | 1892
This action was brought to recover a balance claimed to be due upon a contract with the defendant for altering and repairing five buildings, and for certain extra work, not included in the contract. The complaint alleged that on the 25th of February, 1885, the plaintiff entered into a contract with the defendant, by which the plaintiff agreed to alter and repair five buildings for the defendant, and furnish materials for the work, and the defendant promised and agreed with the plaintiff to pay him the sum therein mentioned therefor. The plaintiff also alleged by his complaint that he had fully kept and performed said contract, and had performed all the conditions thereof on his part. Then follows an allegation in regard to extra work, to which it is not necessary, in view of the conclusion at which we have arrived, to call particular attention. The defendant admitted the entering into the contract, which he alleged to be in writing, and annexed as a part of his answer: and denied that the defendant had kept and performed the contract or its conditions upon his part; and further alleged that said contract provided that the plaintiff would, on or before the 20tli of April, 1885, complete his said contract, and that, in default thereof, he should pay as damages to the defendant, for each house remaining unfinished after the above day, $50 per week; and that the plaintiff failed to perform and carry out the provisions of his contract, in that, among other things, a large part of the work contracted to be done by him was not done in a good, workman-like, and substantial manner, to the satisfaction of the architect referred to in said agreement; and also that the alterations in said house were not completed, and the same not fit for occupancy in every respect, on the 20th of April, 1885, "as required by the contract, but, on the contrary, were never completed and made fit for occupancy, according to the terms of said agreement, by the plaintiff. Upon the trial there was no dispute but that the contract annexed to the answer was the contract referred to in the complaint. Neither was there any dispute that the contract was not completed by the 20th of April, nor until a considerable time thereafter. But it was urged that the defendant had waived the requirement of the contract that it should be completed on the 20th of April, 1885. That by the terms of the original agreement time was of its essence is apparent from the fact that a penalty was attached to the failure on the part of the plaintiff to complete the contract within the time therein mentioned; and therefore, that, unless excused for a failure to perform in time, the defendant would be entitled to recover the damages arising from such failure to complete. Upon the trial, as soon as the plaintiff commenced to offer evidence tending to excuse his failure to perform, objection was made upon the part of the defendant that such evidence was incompetent; that the plaintiff had sued upon the contract, alleging that he had strictly kept and performed all the conditions thereof; and that no excuse for non