
    EDWARD HALL, Appellant, v. JAMES GORDON BENNETT, as Ex’r. &c., Respondent.
    
      Building contract—construction of—notice to cont/ractor—architecffscertificate—liability of personal representatives.—Former action* pending.—Evidence.
    
    The specifications referred to in a-building contract contained a clause-providing that the different parts of the work should be finished at such times, and as many workmen employed thereon, as should be-approved by the architect, and that, if in the opinion of the superintendent it was not proceeded with at a rate which would ensure its completion by the time specified in the contract, he should- be fully authorized to cause the same to be executed as he might deem, advisable. The body of the contract contained a clause : Should!, the contractor at any time during the progress of said works refuse- or neglect to supply a sufficiency of materials or workmen, the-owner shall have the power to provide materials and workmen after-three days’ notice in writing being given to finish the said works.”'
    In an action to recover the amount due under the contract up to the-time plaintiff was compelled to leave the work by defendant, and for damages for not being allowed to complete the same, the defense-being that the superintendent caused the work to be finished by-others than the plaintiff,under the above clause in the specifications,—
    
      Held, that both the above clauses should be construed together, and< that the contractor was entitled to the three days’ notice in writing,, and an opportunity to proceed in conformity therewith,
    
      Also held, that if a breach in that regard by defendant were proven, plaintiff, to recover, need not produce any certificate which under-the contract was to be procured at a time which would have been, subsequent to the breach.
    
      Also held, that as the contract was made by the testator for himself, his executors, etc., if defendant when executor made default, the-estate is liable.
    Another defense was, an action pending to foreclose certain mechanics’"" liens upon the amount due plaintiff on the contract, in which action* the parties to this action were also included.
    
      Held, no bar to this action. Also held, that the testimony of a witness, in said lien action could properly be read on the trial of this action, upon due proof of his death.
    
      Before Sedgwick, Ch. J., and Truax, J.
    
      Decided June 19, 1882.
    Appeal by plaintiff from judgment rendered by-jury, under direction of the court in favor of the defendant.
    The complaint alleged that the plaintiff and defendant’s testator entered into a building contract that the plaintiff performed all the covenants and conditions to be by said contract performed, on his part, down to a certain day, after the death of the testator, when the defendant refused to allow the plaintiff ta proceed with the work described in the contract, and by force compelled the plaintiff to leave such work and refused to allow plaintiff to prosecute it. The action was for the amount due according to the contract up-to the time when plaintiff was compelled to leave such work, and for damages for not being allowed to complete the contract.
    The contract referred to specifications. They contained the following provisions : “The different parts-of the work are to be carried on, at such rate of progress as shall be directed by the architect, and completed at such time as shall be approved by him, and such a number of workmen as he shall decide to be-proper and expedient, shall at all times, be employed upon the works.....And if, in the opinion of' the superintendent, the several works or any portion thereof are not proceeded with at a rate which will ensure the completion of the several portions thereof, or the whole of the same, in such a manner and at the date stipulated in the contract, then the said superintendent shall be fully authorized to proceed to cause-said works to be executed or any portion thereof, as he shall deem advisable, purchasing all such materials as shall be necessary for the purpose, and the entire expense and outlay so incurred beyond the contract-price, shall be charged to the contractor under this contract and shall be fully allowed by him to the owner on the final settlement, etc.”
    The body of the contract contained the following provision: “4th. Should the contractor at any time during the progress of said works refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen after three days’ notice in writing being given to finish the said works, and the expense shall be deducted from the amount of the contract.”
    The court directed a verdict for the defendant.
    
      L. Laflin Kellogg, for appellant.
    
      John Townshend, for respondent.
   By the Court.—Sedgwick, Ch. J.

The ninth defense was, that “ the work was not proceeded with by the plaintiff at a rate which would, or which in the opinion of the superintendent would insure the com-' pletion of the same at the date stipulated in said contract, and thereupon the superintendent caused the said work to be éxecuted and finished by others than the plaintiff and at a cost exceeding the amount which was payable by said contract to the plaintiff.” The materiality of this defense, if it were valid, would be, that it would justify the defendant’s act in preventing the plaintiff from performing the contract, which act the plaintiff had alleged as a breach of the contract. The defense was placed only upon the terms of the specifications. My opinion is, that these terms were to be taken together with the fourth provision of the contract, and that by the latter the right of the owner to proceed to do the work, depended upon the owner giving to the contractor “ three days’ notice in writing to finish said works.” There was no discussion at the bar, as to what should be the substance of the notice, or what would be its exact, effect upon the subsequent rights of the parties, or whether it would be necessary to give more than one notice, if, after the notice given, the contractor, though acting upon it for a time, again was guilty of neglect, which had justified the first notice. Therefore, none of these matters will be determined here. But in accordance with general principles and the specific reference of the contract, the contractor was entitled to one notice in writing and one opportunity to proceed in conformity with the notice. On the trial, the testimony as to whether any notice had been given, was of such a character that the plaintiff had, as he requested, the right to go to the jury upon his claim that the notice had not been given.

The defense that there was a pending suit to foreclose certain mechanics’ liens upon any amount that might be due to the plaintiff upon the contract, and the parties to this action were parties to such suit to ' foreclose, did not make a bar to this action (Westervelt v. Levy, 2 Duer, 355).

I think there was testimony enough to require the action of the jury upon the point as to what under the contract, if that question were reached, should have been charged against the plaintiff, and» also as to whether it was not less than would have been due to the plaintiff if he had performed the contract.

If the plaintiff established a breach by the defendant, it was not necessary for the former to produce or to account for the non-production of any certificate that the contract provided should be procured at a time which would have been after the time of the breach.

The contract was made by the testator for himself, his executors and administrators. If the defendant, when executor, was in default under the contract, the estate would be liable for its consequences.

On an assumption, which I believe to be correct, although the case does not accurately refer to the fact, that the testimony of William R. Stewart was taken in the action to foreclose the mechanics’ liens, to which the plaintiff and defendant were parties, it was competent for defendant to read on this trial that testimony, after proof that he was dead.

The judgment should be reversed and a new trial ordered, with costs of the appeal to the appellant, to abide the event.

Truax, J., concurred.  