General Rules of Practice, rule 10.29 General Rules of Practice, rule 41.. 910 30, 419, General Rules of Practice, rule 82.. 528

ALLEN B. FLANDERS, Appellant, v. ANNA. ROSOFF and HELEN H. AMES, as Executrix, etc., of CLINTON AMES, Deceased, Respondents.

Third Department, January 8, 1906.

Mortgage-specific performance — plaintiff must show performance on his part - when complaint for specific performance not amendable to allow recovery on quantum meruit.

In an action to compel specific performance of a promise to execute a mortgage on real estate to secure a contractor who has erected a building thereon for the owner, it is incumbent on such contractor to show full performance on his part or to justify his failure so to do, and in the absence of such proof the complaint is properly dismissed.

In such action for specific performance it is not error to refuse to allow an amendment to the complaint to enable the plaintiff to recover for the erection of the building as for a quantum meruit when no evidence has been introduced show. ing the value of the work done and materials furnished.

It seems, that under such circumstances a recovery for a quantum meruit cannot be had under a complaint for specific performance or under an amendment for the purpose of allowing such recovery.

APPEAL by the plaintiff, Allen B. Flanders, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 11th day of March, 1904, upon the decision of the court, rendered after a trial before APP. DIV.-VOL. CXI.

1

Third Department, January, 1906.

[Vol. 111.

the court without a jury at the Franklin Trial Term, dismissing the complaint upon the merits.

John P. Kellas and William S. Wade, for the appellant.

Martin E. McClary, for the respondent Ames.

Gordon H. Main, for the respondent Rosoff.

CHESTER, J.:

The action is one in equity for the specific performance of a contract. The plaintiff sought to require the defendant to execute a mortgage on certain premises, upon which a building had been constructed by the plaintiff under a contract between him and the defendant Rosoff, for which the plaintiff alleged that the defendant Rosoff was to secure to be paid to the plaintiff $1,200 by a first mortgage on the premises. The plaintiff alleged in his complaint that he had "in all things performed the said agreement on his part to be performed and duly constructed said building as he stipulated in said agreement to do." While the building was being constructed by the plaintiff the defendant Ames loaned the defendant Rosoff the sum of $1,200 and received therefor a first bond and mortgage upon the premises described in the complaint.

The plaintiff alleged that at the time of the execution of such mortgage to the defendant Ames she had full knowledge of the agreement between the plaintiff and the defendant that the plaintiff was entitled to a first mortgage on the premises to secure the payment of the sum of $1,200. The court found that neither at the time of the execution of the mortgage to Ames, or prior thereto, did she have any knowledge or notice that the plaintiff claimed the right or had the right to a first mortgage or to any mortgage upon the premises described in the complaint for any amount. It was shown that she had no knowledge unless she was charged with the knowledge which the attorney who examined the title and who procured the money from her to make the loan had, but it clearly appeared that the attorney was not her agent in examining the title and that he examined it for Rosoff, for whom he procured the loan and by whom he was paid for his services. So that if he had any such knowledge Mrs. Ames, would not be bound thereby. Even as to the claim that the attorney had any such knowledge there was a