Opinion
November, 1897.
Simon Sultan for appellant.
Andrew Wilson, for respondent Fleming.
The plaintiff claimed a lien, upon the premises owned by the defendant Fleming, for an unpaid balance alleged to be due him under an entire contract whereby he had agreed to perform certain specific work, upon the interior of the building in question, for the sum of $380, this agreement having been made with the defendants Spearing, who were alleged to have been under contract with the owner for the erection of the building, which was to be used as a stable.
Defendants Spearing had made payments to the plaintiff, on account of the contract, aggregating $313.80, and to his claim for the balance, together with a demand for the value of alleged extra work, they interposed a counterclaim of $30 for damages sustained by them because of his failure to perform, denying that he was entitled to any thing under the contract or for extra work.
Upon the issue of performance the evidence was in direct conflict, but from the testimony adduced for the defense, the trial court was well authorized to find that the plaintiff had not substantially fulfilled the agreed requirements and had refused to supply the omissions when his attention was called to them.
This being found as a fact, the plaintiff was not entitled to a recovery of the contract price, nor could he demand that he be credited with that amount, less deductions for the necessary expense to which the defendants were put to when completing the work (Woodward v. Fuller, 80 N.Y. 312), since any intention to substantially perform was negatived by his refusal to complete when called upon.
The finding that no labor was furnished by him, beyond such as the contract called for, was also supported by acceptable evidence, and, so far as the judgment operated to deny the right to a lien or to a personal recovery against the defendants Spearing, it may not be disturbed.
The allowance to these defendants of $40, upon their counterclaim, however, was unauthorized, as a matter of law, apart from the objection that the award exceeded the demand of the answer and was not supported, in its extent, by the proof.
This counterclaim was for expense incurred by the Spearings in completing the work which the plaintiff had assumed to perform, and this expense, so far as the evidence shows that it was incurred for labor which was called for by the plaintiff's contract, was occasioned by the necessary employment of a carpenter's labor for five days at the rate of $3.50 a day, in all $17.50.
Had the plaintiff completed the work and thus become entitled to the agreed compensation, or had the defendants completed it for his account, the balance due him would have been considerably in excess of this sum, and while, for his nonperformance, he could not establish a right to that balance, the defendants' counterclaim, of a lesser amount, must be held to have failed with the failure of the contract out of which it arose. Walker v. Millard, 29 N.Y. 375; Woodward v. Fuller, supra.
Therefore, the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event, unless the respondents Spearing shall, within five days, stipulate that the judgment be modified by striking out the provision for an affirmative recovery, and, as so modified, the judgment will be affirmed, without costs.
DALY, P.J., and McADAM, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless respondents Spearing, within five days, stipulate that judgment be modified, and, as so modified, judgment affirmed, with costs.