BARRETT, J.:

1. While quite agreeing with the learned referee that a contract existed between McKone and Robinson, and that that contract included the tiling, plastering and papier mache work, we cannot concur in the view that the contract price was $1,200. The undisputed evidence seems to establish the contrary. According to the defendant McKone's own testimony, the only limit put upon the cost was that it should not exceed $1,500. The same thing is shown by the defendant's Exhibit E. This was a card on which Robinson first wrote the details of the work which he was to do. At the foot of it, in McKone's handwriting, are the words, "Will not run over $1,500;" and the latter admits that he placed these words there as a memorandum of what occurred at the interview with Robinson. This evidence is absolutely undisputed except by Robinson, who claimed terms more favorable to himself, a claim which the referee rightly disregarded. It is thus proved that Robinson agreed to do the work for a sum not to exceed $1,500. The legal effect of such an agreement was that Robinson became entitled to recover the reasonable value of the work done, with the limitation that such recovery could not exceed $1,500. The case is not, as the plaintiffs claim, analogous to Carll v. Spofford ( 45 N.Y. 61). There the plaintiff refused to put a limit on the cost of his work, but merely made a "rough guess" that it would not exceed a figure named. Here Robinson definitely fixed a sum which the cost should not exceed, and he cannot recover more than the sum so named.

The contract price was not affected by the recital in the order of August 30, 1894, that it was but $1,200. The price was not fixed at the interview which occurred on that day, but at the previous interview between McKone and Robinson. The contract price was, as we have seen, to be about $1,200, but not to run over $1,500. The words "my contract price of $1,200," were merely words of description. And they misdescribed the contract, or rather failed to describe it fully and accurately. That is all. The only purpose of the order was to define the amount which McKone should pay the plaintiffs, and the legal effect of it so far as these plaintiffs are concerned is precisely the same, in all respects, as if the words "my contract price," had been omitted.

2. We are also unable to agree with the learned referee that the plaintiffs became substituted as contractors in the place of Robinson. The order of August 30, 1894, does not effect any such substitution. There is only one possible construction to be put upon it, and that is that it gives the plaintiffs, as sub-contractors under Robinson, the security of McKone's responsibility up to the amount of $1,200. If the plaintiffs became chief contractors in Robinson's stead, they would be entitled to receive Robinson's compensation. But even if we should assume, contrary to the fact, that Robinson's compensation on August 30, 1894, was fixed at $1,200, it would still remain true that the plaintiffs were not absolutely entitled to this sum. They were to receive the "amount of their bill," which was "not to exceed" the sum of $1,200. The learned referee admits that, on its face, this is what the order means, but says that, nevertheless, the evidence as a whole shows that such a substitution was effected. After a careful perusal of his opinion, and examination of the evidence, we are unable to see that he refers to, or that the record discloses, any fact or circumstance permitting such an inference. In fact, the testimony of McKone and his attorney, Eustis, shows that the question of the retention of Robinson or the substitution of the plaintiffs was directly discussed, and the former course deliberately chosen. This was done, as they testify, both because McKone knew Robinson and wanted him to superintend the work, and because the latter believed that there was still a profit in the contract for him after paying the plaintiffs. McKone, from friendly motives, was desirous that Robinson should make any such possible profit.

The effect of this, however, is not what the referee and counsel for the plaintiffs have assumed, viz., that the plaintiffs were entitled to recover their full $1,200 from McKone in any event, leaving the latter to look to Robinson if the work was not completed. McKone has completely protected himself from such a result by the condition in the order that the plaintiffs' right to receive the amount of their bill from him (within the limit of $1,200) shall be dependent upon the completion of the work. McKone was not in the first place liable to the plaintiffs at all. Robinson hired them, and they would have had to look to him throughout but for the order. There is no promise on McKone's part, express or implied, to pay them anything except as specified in the order. They must recover in accordance with its terms, or not at all. The condition made in this paper puts the plaintiffs, for the purposes of this action, in much the same position as if they had been chief contractors. They could not, like a chief contractor, be held by McKone to liability for breach of contract; but when they took the initiative and sought to recover their bill, it became incumbent upon them to show fulfillment of the contract, either by themselves or by Robinson. If McKone had not elected (as his answer shows he did) to finish the work as agent for the contractor, the plaintiffs would have lost all right to compensation. As McKone, however, elected to finish the work and charge up the cost, we think the referee did right in deducting the value of this uncompleted work and awarding plaintiffs the balance. When a contractor fails to complete and the owner does so for him, the former is debited with the amount of the latter's necessary expense, on the theory that the owner is acting as the agent of the contractor; that such expense is incurred in order to entitle the contractor to the contract price, and that the contractor would have had to incur the same expense if he had done his duty. The plaintiffs stand in no better position here. They can recover under their order only what Robinson could have recovered if he had proceeded with the work — always, however, within the $1,200 limit. If McKone was justified, as he clearly was, in doing the work which Robinson's contract called for, but which was not done, either by Robinson or the plaintiffs, he can properly deduct the value of that work from the value of the work which was actually done, and the balance is the just meed of the plaintiffs' recovery.

3. From the foregoing, it results that the plaintiffs should not have been nonsuited on their second cause of action. McKone was liable to Robinson in the sum of $1,500 if the work done was of that value. Robinson assigned away his right to recover $1,200 of this amount, but remained entitled to the other $300 if sufficient work was done. The plaintiffs' assignment covers certain services rendered by Robinson and materials furnished by him. For each day of labor and pound of material Robinson was entitled to recover from McKone, with the limitation, originally, that the whole sum should not exceed $1,500 — with the limitation, after the execution of the order, that such recovery should not exceed $300, if the plaintiffs earned their full $1,200. This difference, between the amount of money earned by the plaintiffs and the full amount earned under the contract, Robinson remained entitled to recover after the order, and the plaintiffs, in so far as they have succeeded to Robinson's rights, must have judgment for the amount so due.

4. We are unable to agree with the referee that the defendant McKone proved that he was entitled to deduct the sum of $761.80 as the value of the uncompleted work. It was simply proved that McKone paid out this amount. There is no evidence that the work done was of that value. The mere fact of payment, standing alone, is not sufficient evidence of value. ( Gumb v. Twenty-third Street R. Co., 114 N.Y. 411, 414.)

5. We also think that the learned referee erred in his disposition of the question of costs. The defendant McKone made an offer of judgment under section 738 of the Code of Civil Procedure. This offer was in these words: "The defendant, Joseph F. McKone, hereby offers to allow judgment to be taken against him in this action establishing the amount of the plaintiffs' lien at the sum of one thousand dollars and costs." The offer was not accepted, and as the plaintiffs failed to establish a lien to the amount of $1,000, the referee awarded costs to the defendant from and after the date of the offer. The appellant contends that the offer was unauthorized for the reason that the Mechanics' Lien Act (Laws 1885, chap. 342) provides a complete and comprehensive scheme upon the general subject, which excludes the section of the Code in question, and prevents offers of judgment thereunder. We do not agree with this view of the statute. It is true that the act contemplates a complete system for creating and enforcing mechanics' liens. But it expressly retains the ordinary procedure in civil actions for the foreclosure of mortgages upon real property except as therein otherwise provided (§ 8). This procedure embraces offers of judgment under section 738, and there is certainly nothing in the Mechanics' Lien Act which is inconsistent therewith, or which provides "otherwise." Section 19 of the Mechanics' Lien Act has no relation to offers of judgment. That section merely allows an offer to pay a given sum into court. Acceptance of the offer entitles the lienor neither to the money nor to judgment. It simply permits the deposit, and thereupon substitutes the money for the land, discharging the lien upon the latter. This is an entirely different thing from an offer of judgment. Offers of judgment are permitted in equity cases the same as in common-law actions. It follows that they are permitted in mechanics' lien foreclosures. They are part of the procedure retained by section 8.

An offer of judgment under the Code was, therefore, admissible. But this offer cannot avail the defendant, for the reason that he has not established, and in the nature of things cannot establish, that the plaintiffs have recovered a less favorable judgment than that offered. The offer here was in the same form as that which was considered and approved in Pfister v. Stumm ( 27 N.Y. Supp. 1000). So far as the plaintiffs ask a judgment in rem, we agree with the conclusion of the learned court in this case. Reasonably construed, the offer covered all the relief asked in the complaint on that hand. Here, however, the plaintiffs also asked and obtained a deficiency judgment in personam against McKone, and McKone offered them no such judgment. His offer says: You may have the property sold and pay yourselves from the proceeds $1,000. But there he stops. The plaintiffs could not have entered or docketed a deficiency judgment in personam against McKone without praying for it and having it adjudged to them. The language of section 23 is explicit, that whenever, upon the sale, "there is a deficiency of proceeds, judgment may be docketed for the deficiency against the persons * * * named in the judgment as personally liable therefor, and therein adjudged to pay the same, in like manner and with like effect as in actions for the foreclosure of mortgages." Here the plaintiffs prayed for this deficiency judgment and the referee found that they were entitled to it. The offer did not embrace it. We cannot say that the judgment which the plaintiffs obtained was less favorable than that offered. A judgment establishing their lien to the amount of $600, with a deficiency judgment in personam, might be more favorable than a judgment establishing their lien at $1,000, but without a deficiency judgment. The statute does not authorize the docketing of the personal judgment as a legal sequitur from the deficiency. On the contrary, it expressly leaves that question to the determination of the court. The court must, in its decree, adjudge the liability and require the payment. It follows that the offer was insufficient to justify the award of costs to the defendant.

As to the Winter appeal, we are satisfied that the finding of the referee, that the item of forty dollars for building the stairway was included in the contract between Robinson and Winter, is amply sustained by the evidence. This item was thus properly disallowed as against the defendant McKone, and judgment has been given the appellant for the remainder of his claim.

The judgment, so far as appealed from by the plaintiff, should be reversed and a new trial ordered, with costs to abide the event; so far as appealed from by the defendant Winter it should be affirmed, with costs.

VAN BRUNT, P.J., RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred.

Judgment, so far as appealed from by the plaintiff, reversed and new trial ordered, with costs to the plaintiff to abide event; so far as appealed from by the defendant Winter, judgment affirmed, with costs.