
    H. Nelson Curtice, Resp’t, v. Amasa B. West, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    I. Contract—Recovery on—Performance is condition precedent.
    This action was brought to recover for materials furnished and work performed in the construction of a hotel building for the defendant. The defendant alleged that the materials were furnished and the work done under a contract which the plaintiff failed to perform. Held, that performance of the agreement on the part of the plaintiff was a condition precedent to recovery unless waived by the defendant.
    2. Same—When literal performance is not required.
    
      Held, that the condition precedent might not, however, require literal performance, but that when the contractor has in good faith intended to comply with his agreement, and has substantially done so, slight defects susceptible of remedy, for which allowance may be made by way of adequate indemnity to the other party, may not be in the way of recovery upon the contract, subject to such allowance for damages. •
    3. Report of referee—When exceptions to findings of fact do not RAISE QUESTIONS OF LAW.
    The conclusions of fact made by a referee not being unsupported by evidence, exceptions taken to such findings do not raise questions of law.
    4. Same—Findings of Pact—When appellate court will not review.
    Where it does not appear that the case on an appeal from a judgment entered on the report of a referee, contained all the evidence on propositions found by him, the question whether they were against the weight of evidence cannot be considered on appeal. It will be assumed that the evidence given on the trial was sufficient fairly to support them
    -8. Evidence—Party is entitled to cross-examine a witness produced AGAINST HEM.
    party is entitled to the opportunity and benefit upon a trial of the cross-examination of a witness whose testimony in chief has been taken by the adverse party, and if without his fault and for causes beyond his control, he is denied that right, the evidence of the direct examination cannot properly be made available to the party taking it.
    6. Same—When cross-examination is suspended by consent — Death OF WITNESS DOES NOT CALL FOR REJECTION OF TESTIMONY.
    Where a witness had been subjected to a direct examination and a partial cross-examination, and the latter was suspended to a day before which the witness died, the death of the witness furnishes no reason for the rejection of his testimony, as the adjournment was by consent of the parties and the loss of the opportunity to cross-examine the witness was not attributable to the fault of the party who examined him in chief.
    7. Same—Res geste.
    Evidence of statements made by a sub-contractor of the plaintiff while engaged upon the work, concerning the character of the work and materials which he was at the time engaged in performing and using, is admissible, as part of the res gestae and its exclusion is improper.
    8. Same—Contract—What circumstances permit admission of conversations REGARDING SUBJECT-MATTER OF CONTRACT PREVIOUS TO ITS EXECUTION.
    Where the action of the plaintiff did not proceed upon the idea that a written contract between the parties had force and validity, but evidence was given in his behalf tending to prove that it was rendered invalid by reason of material alterations made in it after its execution, without his consent, and that question was pending for the consideration "of the-referee, evidence of conversations regarding the subject of the contract to show what was the understanding of the parties previous to "its execution is properly admissible.
    Appeal from judgment entered on report of referee against the defendant.
    The action was brought to recover for materials furnished and work performed in the construction of a hotel building for the defendant. The defendant alleged that the materials were furnished and the work done under a contract which the plaintiff failed to perform. And that as a consequence he has sustained damages of $1,000, for which he-demands judgment.
    
      Horace L. Bennett, for app’lt; S. D. Bentley, for resp’t.
   Bradley, J.

In July, 1879, the parties entered into an agreement in writing by which the plaintiff agreed to erect for the defendant a hotel building in the town of Webster, N.Y.,within the three months for the sum of $3,150, payable-in installments, $1,000 when the frame was erected, $1,000 when the mason work and plastering were completed, and the balance when the entire work was finished. The defendant, as the work progressed, paid the first two installments of $1,000 each to the plaintiff. And on January 8,. 1880, he paid him the further sum of $1,000.

The referee found that the building was substantially completed on or before the day last mentioned; that there were some slight defects in the building caused by inadvertence of the builder, but that they and the deviations from the contract were waived and the building accepted by the defendant as finished on or prior to January 8, 1880, and that the plaintiff was entitled to recover the residue of the contract price and $205.69 for extra work, with interest from that day, and directed judgment accordingly.

The evidence on the part of the defendant tends to prove that in many respects the plaintiff had not performed the contract, ancl that the defects resulting from such failure-are quite substantial and pervasive.

By the evidence, the conclusion apparently was warranted that the default of the plaintiff was such, that he was not entitled to recover upon the contract. The performance of the agreement on the part of the plaintiff, was. a condition precedent to recovery, unless such performance was waived by the defendant. In this class of cases, however, the condition precedent, may not require literal performance, but when the contractor has in good faith, intended to comply with his agreement, and has substantially done so, slight defects susceptible of remedy, for which allowance may be made, by way of adequate indemnity to the other party, may not be in the way of recovery upon the contract, subject to such allowance for damages. Woodward v. Fuller, 80 N. Y., 312. There was evidence on the part of the plaintiff, upon the subject, and tending to prove substantial performance within the rule before mentioned, also, that some of the defects complained of in the structure were caused solely by the defective plans and specifications of the architect, which were parts of the contract. And there is some evidence bearing upon the question of waiver by the defendant of deviation from the contract, and of the defects in the work and materials. These are matters upon which there is a conflict of the evidence of the respective parties. The conclusions of fact in those respects of the referee not being wholly without evidence, the exceptions taken to such findings, do not raise any question of law. Code Civ. Pro., § 992. And as it does not appear that the case contains all the evidence bearing upon the proposition so found by him, the question whether they are against the weight of the evidence, is not here for consideration, and it will be assumed that the evidence given upon the trial was sufficient to fairly support them. Porter v. Smith, 35 Hun, 118; Spence v. Chambers, 39 id., 193.

The same remarks are applicable to the matter of the defendant’s counter-claim alleged. And in respect to that it may also be suggested that there is no request or refusal to find upon the subject. It is, therefore, unnecessary to refer specifically to the evidence bearing upon those questions of fact, for the purposes of this review. We have not, however, overlooked any of the evidence, or failed to appreciate the very thorough analysis made of it by the argument of the learned counsel for the defendant, which but for the proposition before stated, would properly require and have a more extended expression of consideration.

The contention that recovery upon the contract cannot be supported, because the action was upon the quantum meruit is not sustained. Ho such question was raised upon the trial, and it is not available when raised for the first time upon appeal. Then the cause of the action alleged is not entirely remote or distinct from that on which recovery was had.

It was, as alleged, for materials furnished and work done in the construction of a hotel for the defendant, which is the subject of the contract in question. Southwick v. Bank of Memphis, 84 N. Y., 420. The plaintiff called as a witness one Wheat, who was his sub-contractor in the work of construction of the building in question, and examined him at considerable length, and after the defendant had proceeded for some time with the cross-examination of the witness, the further cross-examination “was suspended by the adjournment of the hearing to June 12, 1882,” when the hearing was resumed, and the defendant’s counsel ■called for the witness for further- cross-examination. The witness Wheat had in the meantime died. _ He died June 11. The defendant’s counsel thereupon moved that all of the testimony of the witness be stricken out. Also, that if not all be stricken out, then that certain specified portions •of his evidence given upon his direct examination be stricken out. The referee thereupon did strike out certain portions of the testimony given by the witness upon his direct examination, “as to which be deemed no cross-examination had been had,” which did not embrace all of that specified by the defendant’s counsel in his motion, and allowed the residue to remain. Exception was taken by the defendant.

The referee properly denied the motion to strike out all the evidence of the witness. The question arises upon the exception to the refusal to strike out the portions permitted to remain of those specified in the defendant’s motion. The view of the referee evidently was that the cross-examinatian taken had relation to the subject of the portions allowed to remain of those embraced within such specifications of the evidence in chief of the witness.

While this was correct as to some of it, there were other portions of it that do not seem to have been covered by the cross-examination. A party is entitled to the opportunity and benefit upon a trial of the cross-examination of a witness whose testimony in chief has been taken by the adverse party. And if without his fault and for causes beyond his control he is denied that right, the evidence of the direct examination cannot properly be made available to the party taking it. People v. Cole, 43 N. Y., 508; affirming 2 Lansing, 370.

The burden was with the defendant to make it appear in the case that the motion came within the rule which made its denial error.

In Forrest v. Kissam (7 Hill, 463, reversing 25 Wend., 651), where it appeared that at the close of the direct ■examination by the defendant, of a witness, the further hearing was adjourned by the referees for their own accommodation, to a future day by the consent of the parties, the ■court held that the death, in the meantime, of the witness furnished no right to reject the testimony taken in chief. The reasons for the result given by the several members in the court of errors who delivered opinions in that case were not entirely in harmony, and the views of some of them went further than was necessary to support the conclusion adopted upon the facts there presented. And while those views are criticised by the court in People v. Cole (supra), the decision in the Forrest Case is not overruled. See, also, Burden v. Pratt (1 T. & C., 554); Sturm v. Atlantic Mut. Ins. Co. (63 N. Y., 87); Hewlett v. Wood (67 id., 397).

The adjournment must, as in Forrest v. Kissam, be deemed to have been had with the consent of the defendant, and the opportunity to cross-examine the witness lost without any fault of the plaintiff. The case before us is silent as to the circumstances attending the act of adjournment. And nothing appears showing that the defendant was deprived of the opportunity of then completing the cross-examination if he had desired to do so. And while the day to which the adjournment was taken was Monday, the day of the adjournment does not appear, but the last day of the hearing, as represented by the case, prior to that to which this adjournment was taken, was May 17, 1882. We are, therefore, not otherwise than by that advised by the record of the length of time for which the adjournment was taken. In view of the situation presented by the case no error in the ruling of the referee upon the defendant’s-motion is made to appear. In the cited case of Price v. Wilson (67 Barb., 9), the witness whose evidence in chief was stricken out because he declined or failed to appear and submit to cross examination was a party defendant to the action, and his direct examination had been taken in behalf of the defense. That case is not necessarily applicable to-the question presented here.

There was a large number of exceptions taken by the defendant to the exclusion and reception of evidence on the trial, some of which require attention.

After making the contract before mentioned, with the defendant, the plaintiff, by an agreement of the same date with Wheat, employed the latter to do the work of construction of the building. Wheat became a sub-contractor of the plaintiff to that extent, and proceeded with the work. By witnesses called on the part of the defendant, the latter offered to prove statements made by Wheat in respect to the portion of the work in which he was at the time engaged. The evidence was excluded and exception taken.

There were several such offers and rulings. And without specifying them with particularity, we think the rulings so far as they excluded the evidence of what he said in reference to the character of the work and materials as to which he was at the time engaged in performing and using were erroneously made. These statements were of such a character that it cannot be seen that the defendant may not have been prejudiced by their exclusion. They were inadmissible as part of the res gestee. They may have been treated as. characterizing the acts in which he was then engaged, and may have had some bearing on the question of good faith, which was involved in the considerations presented upon "the trial, bearing upon the plaintiff’s right of recovery on "the contract. The plaintiff, by this contract of employment, had placed Wheat in the relation to the work, which he had assumed by his contract with the defendant. This did not •change his relation to the latter in respect to the work or his responsibility for the acts of his representative, so created in its performance. The excluded evidence had relation to the work performed under the written contract, and to the right of action upon it, and did not relate to the extra work. There were some other exceptions taken to the •exclusion and reception of evidence, which could not prejudice the defendant except in its bearing upon the question, whether or not the plaintiff was entitled to recover upon such contract. They require no consideration because, for the reasons before given, a new trial as relates to that branch of the recovery must be granted. In the view taken of the ■case, it does not become necessary to consider the controverted question as to the kind of refrigerator, and the character and extent of the finish of the observatory required by the plans and specifications, or the admissibility of the •excluded evidence of opinions of witnesses upon that subject, as the additional expense of doing all that the defendant claims was requisite to the performance of the contract in those respects would be less than the amount remaining unpaid upon such written contract of the price for the work and materials stipulated by it. Woodward v. Fuller, 80 N. Y., 312.

The plaintiff was permitted against objection and exception of the defendant to give evidence of a conversation, said by him to have taken place between the parties shortly prior to the execution of the written agreement to the effect that the defendant promised to give his personal supervision, care and attention to the work as it progressed, and to relieve the plaintiff from such care in view of the fact that it was understood that the latter would sublet the performance of the work to Wheat. Also that there was some understanding then had between them as to the requisitely seasoned condition of the timber, or some portion of it, to be used in the construction of the building. These statements of the understanding between them were not in accordance with the provisions in the written contract, but may be deemed to be in contravention of its terms. This evidence was incompetent to qualify or modify the terms of. the written contract, which is presumed to embrace the final consummation of the negotiation in respect to all matters embraced within its provisions. And if the existence and force of the contract, as such, may be deemed to have unquestionably been established at the time such evidence was received, its reception was error. But it may be observed that the plaintiff did not in the outset of his action proceed upon the idea that the written contract had force and validity as such, but gave evidence tending to prove that it had been rendered invalid by reason of material alterations made in it after its execution without his consent, and that was a question pending for the consideration of the referee at the time the evidence referred to was given, of what the plaintiff claimed was the oral understanding between him and the defendant before the written agreement was completed. In that view the reception of the evidence was not error. And the determination by the referee that the contract had not been so altered, and that it was effectual and binding between the parties to it had relation to the effect of such evidence rather than to its admissibility when offered and received. We are inclined to think that in view of the result given to this review there was no error to the prejudice of the counter-claim alleged by the defendant, and to which evidence related, in the admission or rejection of evidence on the trial.

The judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulate to deduct from the recovery one hundred and fifty dollars and interest thereon from January 8, 1880. And in that event the judgment be so modified, and as modified, affirmed, without costs of this appeal to either party.

Haight and Dwight, JJ., concur; Barker, P. J., not sitting.  