55 N.Y.S. 524 | N.Y. App. Div. | 1899
This action is brought to foreclose a mechanic’s lien against the premises Xo. 136 West Eighty-second street, Xew. York city-. On July 6, 1896, plaintiff entered into a contract with the-defendant to erect an extension and complete alterations to the building; and the action is brought to recover a balance alleged to be due under the contract and for extra work.
' The theory of the complaint is substantial performance of the contract. It is -first alleged that the contract was made, and that the plaintiff entered upon the work and “ substantially completed ” it. Later it is alleged that the defendant waived the provisions of the contract in certain particulars,-and that the plaintiff performed all of -its-terms and conditions except such as were thus waived. These waivers related to the time of performance, the supervision of the architect, the necessity of written orders for extra work and the requirement -of the architect’s certificate as a condition of j>ayment. The answer denied “ that the plaintiff has done or performed all the terms and conditions of the agreement mentioned' in the complaint upon his part to be done and performed, except as to the provisions of said contract which had been waived by the defendant.” Inasmuch as none of the waivers related to the quantity of Avork, this denial necessarily put in issue the question, of the performance of the work contracted for. The very technical point is made that the ‘ansAver should be construed as denying strict and literal per
In this case, therefore, the issue was whether the plaintiff performed his contract so as to entitle him to recover under its térras. In such a case it is well settled that the plaintiff may not, against the defendant’s objection, recover úpon the other theory that facts, existed excusing his non-performance. (Oakley v. Morton, 11 N. Y. 25, 30; La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380 ; Elting v. Dayton, 43 N. Y. St. Repr. 363; affd., 144 N. Y. 644.) It follows that the sole question on this appeal is whether the plaintiff substantially performed. If not, the judgment must be reversed, unless the defendant in some manner waived the variance between the pleading and the proof offered and consented to the trial of another issue. •
The plaintiff was his own sole witness in chief. He expressly admitted that he left the work in an uncompleted state. He was then asked to give the value of the omitted items. This was objected to on the ground that it was not material to the issue alleged, namely, substantial performance. The objection was overruled and an exception taken. Thereupon the plaintiff testified that the value of this work was $468 to $473; and that it included lathing and plastering the cellar, $250 worth of carpentering, some painting, a range and boiler, some mantel tops and some gas fixtures. At the close of the plaintiff’s testimony he rested, and the defendant’s counsel moved to dismiss upon the ground “ that the plaintiff had not proved the
It is clear,' upon the plaintiff’s own evidence, that he did not substantially perform the contract. He admits that he left undone over one-twentieth of the work, consisting of numerous items. He did not overlook this work, but simply neglected it, relying upon an ¡excuse, the validity of which could not be considered upon the issue tendered by his complaint. Under such circumstances it is plain that •there* can be no recovery. • Whatever may be the rule where the contractor is endeavoring to perform in .good faith, and has omitted some ¡slight things by inadvertence, it is well settled that any substantial deviation or omission, made' intentionally, will bar a recovery. (Glacius v. Black, 50 N. Y. 145 ; Van Clief v. Van Vechten, 130 id. 571; Crane v. Knubel, 61 id. 645.) In such a case the extent of- the default, if material, will not be inquired into, (Crane v. Knubel, supra.) As was said in Van Clief v. Van Vechten (130 N. Y. 579): “ When the refusal to proceed, is willful, the difference between substantial and literal performance is bounded by . the line of de minimis.”
- We do not, however, wish to be understood as suggesting that, even if the plaintiff had here endeavored fully to perform in good faith,, the omissions would have been unsubstantial. It ia ¡quite clear that,! '.no matter what his intention was, the failure to do the considerable amount of work which lie admitted he djd not do was a failure to substantially perform.
The contract contained a clause permitting the defendant, upon the' plaintiff’s default — after giving him three days’ notice to proceed— to himself continue the work for the account of the plaintiff, -and to deduct the expense of completion from the contract price. It appears inf eren tially from the defendant’s testimony that he served some such notice. It is Urged that this prevented him from claiming a forfeiture. The evidence upon this head is quite indefinite ; but if we should assume-that it showed an election ■ by the defend-; ant to proceed under the contract, and that such an election precludes him from rescinding it, still this cannot aid the plaintiff upon the present appeal. We must repeat — he alleged performance
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Yah Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred. ,
Judgment reversed, new trial ordered, costs to appellant to abide event.