76 N.Y.S. 563 | N.Y. App. Div. | 1902
I think that the case fails to show either the express or the implied consent on the part of the appellant that must appear before he can be held liable for the extra work. Paper Co. v. Sire, 163 N. Y. 122, 131, 57 N. E. 293; Cowen v. Paddock, 137 N. Y. 188, 193, 33 N. E. 154. It is true that the amendment of the pleadings so as to conform to the proof, made at the close of the testimony, permitted the plaintiff to recover upon substantial performance, and not upon the full performance pleaded; but the evidence of the defendant supplied the omission of the plaintiff to plead or to prove the expense necessary to complete the contract, as might have been required if his original pleading had been a substantial performance, under the rule of Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238. Thus the court was enabled to adjust the judgment.
It is also true that the appellant tendered $175 in full payment before the suit was begun, but, even assuming that the extra work could have formed no part of the recovery, the court has determined that the plaintiff was entitled to $190 under the contract; and we cannot assume that if the plaintiff had sued upon substantial performance, and had claimed the balance of the contract price struck after a deduction of the necessary and stated expense, the appellant would have paid that amount into court.
The judgment should be modified by deducting the allowance for extra work and its share of the interest awarded, and as so modified affirmed, without costs of this appeal to either party. All concur.