
    Katharine Thompson, Appellant, v. James Laing, Respondent.
    1. The unqualified refusal of a contractor for apart of the work on a building in actual progress of erection, to perform what he has undertaken, is in itself a breach of the contract. The employer is not bound to delay the completion of the building during- the period which was allowed to the contractor for performance.
    2. If, after such refusal, the contractor can reinstate himself, he must at least show a subsequent offer and readiness to perform in time.
    3i In an action by the owner against the contractor, to recover damages for such breach, it is no defense that the plaintiff, after the refusal, made a contract with other persons who had previously agreed to do the same work for a prior owner of the building,- and that they commenced the work for the plaintiff before the expiration of the time fixed for performance of defendant’s contract.
    (Before Hoffman, Woodruff and White, J. J.)
    Heard, June 11;
    decided, July 13, 1861.
    This action was brought- to recover damages laid at fifteen hundred dollars, for non-performance of a contract by the defendant to make and put up the stone steps of four houses built by the plaintiff, on Thirtieth street, in the City of Yew York.
    The answer denied any default on the part of the defendant,- and, among other things, averred that defendant was prevented from performance of the alleged contract, owing to other contractors for the same work being in possession of the buildings under plaintiff’s authority.
    The action was tried before Mr. Justice Mohcriee and a Jury, on the 27th of March, 1861. It appeared that the contract, with defendant was made on the 6th of July, 1858; that the work was to be completed on or before the 15th day of August, 1858.
    A previous owner of the buildings it appeared, had agreed with the firm of J. & A. Mulvihill to erect the stone work of the houses in question; and the defendant on being notified by the plaintiff .on or about the 20th of July, to proceed with the work, refused, saying that he had been deceived in the contract. Shortly after, Mulvihill & Oo. made a contract with the plaintiff and performed the work, they having previously prepared the materials under the former contract.
    The plaintiff was' á married woman and acted by her husband as her agent in making the contracts. On the trial he was offered as a Witness in her behalf but was excluded on the objection of the defendant.
    After the plaintiff rested, counsel for defendant moved to dismiss the complaint, on the ground that the penalty! for non-fulfillment could not be exacted till the 15th of I August, 1858, and in the meantime the plaintiff had made j another agreement with another party, to wit, on the 30th of July, which agreement was supplementary to a prior contract under which the said other party was in the course of performance of the work in question. This motion was granted by the Court, and the Counsel for plaintiff excepted.
    After judgment entered, the plaintiff appealed to the General Term.
    
      R. H. Underhill, for the plaintiff, appellant.
    I. The testimony of the husband should have been received.
    II. The Court erred in dismissing the complaint.
    1. On the defendant’s refusing to perform, the plaintiff was entitled to consider the contract as rescinded ; thereupon a right of action accrued to the plaintiff to recover the penalty for non-performance. (Hochster v. De La Tour, 2 Ell. & Black., 678 ; Cort v. Ambergate, &c., R. R., 17 Q. B., 127 ; Short v. Stone, 8 Id., 358 ; Lovelock v. Franklin, 8 Id., 371 ; Planchè v. Colburn, 8 Bing., 14 ; L’Amoreaux v. Rolfe, 36 N. H. R., 33 ; Shaw v. Grandy, 5 Jones’ N. C. R., 56.)
    2. The recision was a question of fact for the Jury. Fitt v. Cassanet, 4 M. & G., 898.)
    3. But if the contract was not rescinded, defendant should have offered to perform; and as there is no evidence that he was prevented, his failure gives the plaintiff a right of action.
    
      Wm. R. Stafford, for the defendant, respondent.
    I. The liability of the defendant could not accrue under the terms of the contract, prior to the 15th of August, 1858, and the act of the plaintiff on the 30th July, 1858, in contracting for the same work with J. & A. Mulvihill necessarily prevented the defendant from performance. (Dubois v. Del. and H. Canal Co., 4 Wend., 285 ; Whitney v. Spencer, 4 Cow., 39 ; Bagley v. Clarke, 7 Bosw., 94.)
    Wherever the contract becomes incapable of being performed, substantially as the parties intended, by the voluntary act of one of the parties, the other is not bound to proceed. (Kleine v. Catara, 2 Gall. C. C. Rep., 74 ; Dearborn v. Cross, 7 Cow., 47 ; Allen v. Jaquish, 21 Wend., 628 ; Healy v. Utley, 1 Cow., 345 ; Parsons on Contracts, 190, 191, note r, and cases cited.)
    II. The husband of the plaintiff was correctly excluded as a witness.
    III. There was nothing to submit to the Jury. It was utterly impossible to apportion any damages to the plaintiff. She had vacated her entire claim. A verdict in her favor never could have been sustained, and it was therefore the duty of the Court to nonsuit. (Stewart v. Simpson, 1 Wend., 376 ; Rudd v. Davis, 3 Hill, 287.)
   By the Court—Woodruff, J.

The defendant agreed, on July the 6th, lIHpto do the work as alleged in the complaint. This was clearly proved by the written agreement. He was, by the agreement, to complete the work on or before the loth of August, 1858. He refused to perform his contract, and on the 30th of July, 1858, the plaintiff employed other persons to do the work. We think the plaintiff, after the defendant’s unqualified refusal to do the work, was not bound to wait until the time for the performance of the work had expired. The unqualified refusal was a breach of the contract. It cannot be that when one who has undertaken to do a part of the work of a building in actual progress of erection, refuses to perform, the owner is bound to delay the completion of the building, keeping back all the other work, during the whole period allowed for performance. If, after such refusal, the defendant could reinstate himself, he should at least show his subsequent offer, and his readiness and ability to perform the work in time. Hot showing this, the plaintiff was entirely at liberty to cause the work to be done by others. There was some evidence that there were impediments in the way of the performance of the work, arising from the state of the street and sewer. The defendant’s refusal did not proceed on any such ground; and if it could be made to avail him, the case was not so established, that the cause should be taken from the Jury. It was not taken from them on any such ground.

As to the evidence of a former contract:

1. It is not shown that in point of fact there was any obstacle arising from that cause to the defendant’s performance of his contract as agreed.

2. It is not satisfactorily shown that there was any outstanding contract which bound the plaintiff, or deprived her of the power to employ the defendant as she did. Mulvihill’s prior contract was with prior owners, and it does not appear that the plaintiff had assumed it, or was bound thereby. On the contrary the plaintiff was for six weeks or upwards negotiating witMM&Llvihill on the subject, and finally a new agreemS^^as made, without which it does not appear that she would have been bound to Mulvihill at all.

We are not satisfied that any error was-committed in rejecting the testimony of the husband of the plaintiff, though we are aware that on that subject there has been some difference of opinion.

On the ground first named we think the complaint ought not to have been dismissed, and that the judgment should be reversed and a new trial ordered, costs to abide the event.  