This check has never been used, and the signature has been canceled. Stevenson, who drew the check and made the investment as the agent of the defendant, testified that the check was not used, so as to avoid two unnecessary transactions and entries, to wit, the drawing of a check by the defendant on his bank account in payment of the loan from Kane, and depositing it to his credit, and then the use of the check above set forth in payment for an interest in a Grant & Ward contract purchased by the defendant for Kane on that date. This was positively testified to, and we are unable to see any suspicious circumstances connected with the transaction, making it necessary to submit to the jury the question of the truthfulness of the undisputed testimony of Stevenson. More than this, after Kane's return from Europe this check book was returned to and used by him, and the transaction was never repudiated nor questioned by him. If, as the plaintiff asserts, the defendant did not make the investment, and his claim to have done so was a fraudulent afterthought, it is difficult to see why no attempt was made to conceal this so-called evidence of guilt, as there was ample opportunity for doing so. We think the check and stub, in connection with the circumstances, sustain, rather than discredit, the testimony of Stevenson, and that a verdict was rightly directed for the defendant, and that the judgment should be affirmed, with costs.

(70 Hun, 222.)

ZIMMERMANN et al. v. JOURGENSEN.

(Supreme Court, General Term, First Department. June 30, 1893.)

1. ACTION ON BUILDING CONTRACT-COMPLETION BY OWNER-EVIDENCE.

Plaintiffs agreed to make certain alterations of and additions to defendant's building. The contract provided for three payments, the last 10 days after the entire work was completed. It further provided that, "should the contractor, at any time during the progress of the said work, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract." After the first two installments had been paid, defendant, under such provision, elected to complete the work himself, claiming that plaintiffs had neglected to supply a sufficiency of material and workmen. Plaintiffs brought action on the contract for the third installment, less the reasonable value of completing the building, alleging that the work was substantially completed when defendant took possession. It appeared, however, that at that time the floors were not laid, that the ceilings were wanting, and that portions of the building were exposed to the weather; that there was also imperfect work, which had to be done over; that more was ex

pended in completing the building than remained unpaid under the contract. Held, that plaintiffs could not recover.

2. SAME.

Nor could the fact that defendant, in completing the building, departed from the plans and specifications by introducing additional work, make any difference, where the contract provided that, "should the owner, at any time during the progress of the said building, request any alterations, deviation, addition, or omission from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may L", by a fair and reasonable valuation," and where it was not shown that such changes were made in bad faith.

3. SAME EVIDENCE.

It was improper to ask the carpenter who finished the work for defendant whether he was able to state how much of the work that he did was embraced in the plans and specifications, since the question called for a conclusion which the referee, to whom the case was referred, was competent to draw for himself, and besides the specifications were present for examination.

Appeal from judgment on report of referee.

Action by Jacob A. Zimmermann and Joseph J. Zimmermann against Christian Jourgensen on a building contract. From a judg ment dismissing the complaint on the merits, and in favor of defendant on a counterclaim, plaintiffs appeal. Affirmed.

For former report, see 14 N. Y. Supp. 548.

The fourth section of the contract provides that:

"Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract."

Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT,

JJ.

J. G. Flammer, for appellants.

Charles G. Coe, (Frank Rudd, of counsel,) for respondent.

O'BRIEN, J. This is the second time this action has come before this general term for review. It was brought on a building contract between plaintiffs, as contractors, and defendant, as owner, to recover a balance claimed by plaintiffs to be due for making alterations and additions to defendant's building in Maiden Lane, in this city, under such written contract. By its terms the contract provided for the payment to plaintiffs of the sum of $14,199 for the entire work, in the following manner: $4,000 when the third tier of beams was placed in position, $4,000 when the roof was on, and the balance, $6,199, 10 days after the entire work was completed. Although no time was specified in the contract, it was insisted by defendant that May 1, 1890, was agreed upon as the date of completion; but the referee has found against this contention, holding that no time was agreed upon between the parties within which the said work should be finished. Upon the execution of the contract, which was made in March, 1890, the plaintiffs commenced work thereunder, and continued until August 20th, when

the defendant, availing himself of a clause in the contract, entered into possession of the premises, and elected to complete the work himself for and on account of plaintiffs, claiming that they had neglected to supply a sufficiency of material and workmen. The first two installments, $4,000 each, having been paid, there would have been due, had the plaintiffs fully completed their contract, $6,199, in addition to an unpaid balance of $355, which, as found by the referee, was due plaintiffs for extra work performed at defendant's request. The plaintiffs allege that defendant would be entitled to an allowance on the final payment of $1,118 for completing the work; and it is the entire balance, together with pay for the extra work, less such allowance to defendant, for which plaintiffs demand judgment. The plaintiffs, in their complaint, allege that the work was substantially finished when defendant tock possession of the premises, and it is seemingly their theory that it is the entire contract price, less what would be the reasonable value of completion, which should determine the amount for which they are entitled to judgment. We think, however, that there can be no dispute, upon the evidence as furnished by the plaintiffs themselves, that when the defendant, after service of a notice upon the plaintiffs, assumed the right to take up the work and complete it himself, it was not substantially finished. The testimony shows that upon that date the premises were unfit for occupancy, glass flooring half laid, floor and ceilings wanting, and portions of the building exposed to the weather. If the plaintiffs had abandoned their work at that stage, we fail to see how they would have been entitled to recover anything, because, upon such facts, showing that the cost of completion, according to plaintiffs' own theory, would be more than $1,000, and according to the defendant's more than $6,000, there would have been no such substantial completion as, under the authorities, would have entitled the plaintiffs to recover the contract price, less the amount required to complete the building. The familiar case of Woodworth v. Fuller, 80 N. Y. 312, states under what circumstances a recovery may be had on a contract without a literal or exact performance of it in the following language:

"Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects, caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects. The defects must not run through the whole, nor be so essential as that the object of the parties to have a specified amount of work done in a particular way is not accomplished."

In addition to the work which then remained to be done, there was imperfect work. which had to be done over, and which, as found by the referee, cost defendant $175. The existence of this condition of affairs, showing that a portion of plaintiffs' work had been imperfectly done, requiring the expenditure of time and money by the defendant, raises a serious question as to plaintiffs' right to maintain the action at all. We do not, however, decide that this is an insuperable bar to a recovery, but will proceed to dispose

of the case upon the merits as they were presented before the referee; but it is proper that the matter should be adverted to, as it is also that we should endeavor to ascertain from the complaint itself the theory upon which the plaintiffs base their right to recover. As already remarked, we must discard the theory in one part of the complaint presented, that plaintiffs are entitled to recover because, having substantially performed their contract, they should receive the entire amount thereunder provided to be paid, less what was necessary to be expended by the defendant to entirely finish the work. In another paragraph of the complaint it is alleged that, after commencing, the plaintiffs continued the work "conscientiously, diligently, and with all possible speed, and used their best endeavors to get prompt and sufficient sup plies of the building material to be used in the construction of the said work until August 20, 1890, when the defendant refused to permit the plaintiffs to complete the said work, and prohibited them, their agents and servants, from entering the said buildings Nos. 96 and 98 Maiden Lane, and notified the plaintiffs that he would finish the said building, and deduct the expense thereof from the amount still due and owing to the plaintiffs under the said contract." Had the plaintiffs succeeded in sustaining these allegations, then they would have been entitled to recover damages as against the defendant for a breach of the contract on his part, because the charge thus made is the exact equivalent of saying that the defendant wrongfully broke his contract. Upon such facts the plaintiffs would have had three remedies in law: First, they could treat the contract as at an end, and claim damages for its breach; second, they could recover on a quantum meruit for all work done by them up to the breach which remained unpaid for; or, third, they could recover the full contract price if the contract was substantially performed. It is evident from the testimony that plaintiffs did not elect to proceed upon either the first or the second of the remedies above mentioned, and we are therefore left to assume that recovery was sought upon the theory that the contract was substantially performed. For reasons already given, it is difficult to see how recovery could be had upon

this ground; but, as the case was fully tried out, it is perhaps right that we should treat it as the parties themselves did seemingly upon the trial, by examining into the questions in dispute between them. regardless of the issues as made by the pleadings, determine whether, upon the facts as proved and found by the referee, the conclusions of the latter were sound. Upon conflicting evidence, the referee has found (and we see no reason to disturb such findings) as follows:

"Sixth. That for some time prior to the 15th day of August, 1890, plaintiffs refused and neglected to supply sufficient workmen and material for the proper prosecution of the said work; that on the said day the defendant served on the plaintiffs a notice in writing, in accordance with the said fourth section of said contract; that for three days thereafter, and down to said August 20, 1890, plaintiffs still failed, neglected, and refused to supply a sufficiency of material and workmen, and thereupon the defendant excluded said plain

tiffs, their agents and servants, from said premises, and proceeded to complete said work himself. Seventh. That a large portion of the work as called for by said contract, constituting a material and substantial part of said work, remained unfinished on the said 20th day of August, 1890, when the plaintiffs were so forbidden to finish said work."

Upon these facts the defendant, under the terms of the fourth clause of the contract, was entitled to finish the work and deduct the expense from the amount due under the contract. That more was expended to complete the building in the manner in which it was completed than remained unpaid under the contract is abundantly shown by the evidence. It is insisted, however, by the plaintiffs that the large expenditures thus made were the result of departing from the plans and specifications, and of introducing additional and extra work, which, if the defendant were entitled to deduct from the contract price, would result in injustice to them.. It should be remembered, however, that the contract itself provided for changes in the plans and specifications in language as follows:

"Third. Should the owner at any time during the progress of the said building request any alterations, deviation, addition, or omission from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation."

This provision, as well as the specifications themselves, show that it was in the contemplation of the parties, in view of thenature of the work, that variations from the plans and specifications would be necessary; and as it was not shown that any changes in such plans and specifications were made in bad faith, or with a view to injuriously affecting the plaintiffs, we do not see that they have any reason to complain. It certainly was not the duty of the defendant, after the plaintiffs had unreasonably delayed. their work and failed to provide necessary material and sufficient workmen, merely for the purpose of having correct accounts at the completion of the work, to adhere strictly to the plans and specifications, to his own prejudice. It would, of course, have saved much question, and presented the matter in a clearer way, if the defendant had kept a more exact statement of the payments madefor work done under the plans and specifications separately from the amounts expended for such deviations and alterations from the plans and specifications as were required by the nature of thework.

It was suggested in the former opinion of this general term that the burden was upon the plaintiffs of showing what it would cost defendant to complete the contract according to the plans. and specifications, and that it was the contract price, less such cost, that they could alone recover. Exception is taken to this statement of the law; but if we assume the plaintiffs' view to be correct, that the burden was upon the defendant, it was not, as far as the defendant had it in his power to meet it by his presenting a detailed statement of the amounts paid all the different workmen, and by showing what such payments were made for.