
    William D. Chapin, Respondent, v. The L. Candee & Co., Appellant.
    (City Court of New York
    General Term,
    November, 1895.)
    Where the contract for building a well does not require that the well when completed should supply any given number"of gallons per minute, it is immaterial to a recovery for the work whether or not such Well was useful to defendant or fit for the purpose of its intended use.
    'An objection that the contractor did not properly cover the-well is not a defense where payment was not refused on that account, blit because the well was. entirely unfit for use.-
    Appeal from judgment in favor of. the plaintiff, entered upon a verdict.
    
      Arnoux, Hitch & Woodford, for appellant.
    
      G. De H. Brower, for respondent. '
   Fitzsimons, J.

The plaintiff herein claimed that the original contract made between him and the, defendant was, subsequent to the commencement of the work required to be done thereunder, modified and changed, and as so modified he completed his part thereof. As to whether or not such modification was made was one of the questions in dispute, and was. properly submitted to the jury and determined against defendant. The evidence was certainly sufficient to justify a verdict in plaintiff’s favor. Therefore, the trial justice was right in refusing to set aside the verdict upon defendant’s motion as against the weight of evidence and contrary to law.

Under the contract the plaintiff was' not required to build "a well that .would supply a given number of gallons per minute; therefore,, it was immaterial whether or not the well, when finished, was useful.to the defendant, or fit for the purpose of its intended use by defendant. No .such contract was made herein, and the evidence sought to be introduced by defendant tending to show,that the well was useless to it was properly excluded. x

As to the failure of plaintiff to properly cover over the top of the well, that, evidently, was an insignificant and unimportant part of the work, particularly in view of defendant’s claim that the well was entirely unfit for use.’ That being so, it is evident that it could have properly covered it at a trifling cost. • Even plaintiff says that such cost could not have exceeded twenty dollars, which amount the jury allowed ■ defendant in their verdict. It is very evident from the defendant’s testimony that it did not attach any importance to the failure of plaintiff to cover the well as the contract required; its whole and sole objection appears to be that the well furnished only 100 gallons per minute. In our' opinion, under the facts and circumstances of this case, the objection at present under consideration is technical and not substantial in merit or law.

We have examined the record carefully and think that the plaintiff performed his contract. The result was undoubtedly unsatisfactory to defendant, but that fact does not affect plaintiff’s right to recover herein, as he did not contract that the well (as before stated), when completed, would supply any given number of gallons of water.

The judgment must be affirmed, with costs.

' McCarthy, J., concurs.

Judgment affirmed, with costs.  