
    John H. Byron, Resp’t, v. Henry R. Low, App’lt.
    
      (Court of Appeals,
    
    
      Filed April 10, 1888.)
    
    1. Contract—Construction of—Condition precedent.
    By the terms of a certain contract, the chief engineer of the construction company was made the arbitrator between the parties to settle all differences arising out of the contract to estimate the quantities and amounts of the several kinds Of work and make monthly certificates for the same, reserving ten per cent thereof. The final payment to be made was provided for in these words: '‘Butin case of the full completion of said work by the party of the first part therein, and upon the final estimate thereof by the said chief engineer, the said party of the second part agrees to pay within ten days to the party of the first part the full amount then due, including the reserve of ten per cent.” Held, that the certificate of the engineer was a condition precedent to the plaintiff's right of action.
    2. Same—Breach—Hot waived by continued performance.
    A breach of a contract, in one respect, is not necessarily waived by a continued performance thereafter. The contractor can go on and complete his contract so far as possible and recover according to its terms, the damages for the breach, but those damages themselves are founded upon the stipulations of the agreement.
    Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment in favor of plaintiff entered upon a verdict of a jury rendered at a trial term of said court.
    
      W. J. Groo, for appl’t; L. Laflin Kellogg, for resp’t.
   Finch, J.

We are unable to deny the force of several propositions relied upon by the appellant. By the terms of the contract, the chief engineer of the construction company was made the arbitrator between the parties to settle all differences arising out of the contract, to estimate the quantities and amounts of the several kinds of work and make monthly certificates for the same, reserving ten per cent thereof. The final payment to be made was provided, for in these words: “But incase of the full completion of said work by the party of the first part then, and upon the final estimate thereof by the said chief engineer, the said party of the second part agrees to pay within ten days to-the party of the first part the full amount then due, including the reserve of ten per cent.”

Under this provision the certificate of the engineer became a condition precedent to the plaintiff’s right of action. The chosen arbitrator was to fix the amount of the final payment, and the same was to become due in ten days after such final estimate was made. The provision comes clearly within the rule which makes such certificate a condition precedent to the right of recovery. Delaware and Hudson Canal Company v. Pennsylvania Coal Company, 50 N. Y. 250.

The first answer made to this difficulty, is that the plaintiff demanded a certificate of the engineer, after the close of the work, which was refused. There is no evidence, either of such demand or refusal, before the commenóement of the action. On his direct examination the. plaintiff claimed to have made such a demand, but on cross-examination he explains precisely what it was, and it turned out to be merely a repeated inquiry, whether “ the returns were in,” that is whether the estimates and measurements of the division engineers had been returned to the chief engineer, so that he could make the final estiestimate.

There was no demand of the certificate and no refusal, even according to plaintiff’s version of the facts, and no question upon that subject to be submitted to the jury. The claim made on the agreement that the demand sworn to by plaintiff was different from the one explained on cross-examination is entirely dispelled by a careful reading of the testimony. On the motion for a nonsuit the court expressly and correctly said, “there is no pretense that the certificate was furnished or demanded.”

It is then said, and that is the ground upon which the case was submitted to the jury, that the contract was broken by the defendant in refusing to allow plaintiff to do the mason work at Broadhead’s creek, and if that was found to be the fact, no final certificate of the engineer was requisite or necessary.

This doctrine proceeds upon an erroneous view of the rights of the parties. The action was not brought upon a <quantum meruit upon the ground that the contract had been rescinded and no longer subsisted, or to rescind or annul it. On the contrary it was brought to enforce it, and necessarily affirmed it. Quinn v. Van Pelt, 56 N. Y., 417. It went upon the theory that there had been a full and final performance, since the work not done was omitted by the defendant’s direction, and not through the fault of plaintiff As to that, readiness to perform was equivalent to performance, and the plaintiff came into court standing upon the contract, demanding payment according to its terms, and damages for the work withdrawn. That he had a right to do. In McMaster v. The State, recently decided (13 N. Y. State Rep., 674), we held that a breach in one respect was not necessarily waived by a continued performance thereafter, but that the contractor could go on and complete his contract so far as possible, and recover according to its terms, with damages for the breach, but those damages themselves founded upon the stipulations of the agreement. That is what this plaintiff did. The part of his work at Broadhead’s creek was without difficulty sever-able from the body°of the contract. The defendant wrongfully, as we must assume, from the verdict of the jury in September of 1881, gave that work to others. The plaintiff, notwithstanding, continued his performance of the contract for a year or more, obeying its requirements and taking payments according to its terms. He now sues upon the contract to compel performance or its equivalent by the defendant, and necessarily stands upon and affirms it.

He cannot, in the present form of action, affirm it for one purpose and repudiate it for another. He cannot re- ' cover upon it as binding upon the defendant and deny its; obligations upon himself. Hence the condition precedent of the engineer’s certificate could not be disregarded. When the amount to which plaintiff is entitled for the work done is settled and fixed by the selected arbitrator, that amount becomes due in ten days thereafter, and when it has been recovered together with the damages, if any, ■ for the work withdrawn, the plaintiff gets his exact rights under the contract on which he sues, and both parties have been made to obey its substantial terms. As the case was tried, the contract was held to subsist for some purposes but not for others, and to bind the defendant but not the plaintiff. The exceptions to such rulings must therefore be sustained.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.  