
    Francis E. Spinner, Respondent, v. George D. Dutton, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Contracts — parties or persons by whom or against whom enforceable — performance of contracts.
    Where plaintiff was employed to lay an iron pipe from a reservoir to defendant’s country house but a break in the pipe due to plaintiff’s negligence prevented its use for that purpose, the mere fact that upon the discovery of the break it was repaired at a trifling cost was not conclusive that said defect was not material; and in an action to recover the contract price defendant was . entitled to show as damages plaintiff’s failure to properly lay the pipe hoth for the purpose of showing that the contract was not substantially performed and as a basis for a counterclaim.
    Where before the discovery of the break plaintiff notified defendant that the pipes were all right and that the ceasing of the flow of water was due to a lack thereof in the reservoir and advised the tapping of a new water supply, the defendant is entitled to counterclaim as damages the expense of the new water supply which when allowed to flow into the reservoir failed to supply the house, though there was a sufficient supply in the reservoir.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, first district, rendered in favor of the plaintiff after a trial before the court without a jury.
    Root, Clark & Bird (Grenville Clark, of counsel), for appellant.
    James E. Duress, for respondent.
   Lehman, J.

The plaintiff was employed by the defendant to lay a line of iron pipe from a reservoir to a house upon defendant’s country place. After the line was laid, water ran from the reservoir to the house for about a week, and then ceased running. Defendant notified the plaintiff of this fact, and plaintiff visited the country place with his foreman. They examined, the reservoir and made certain tests upon the pipe, and then informed the defendant that the pipes were all right, and that the trouble was due to a lack of water in the reservoir, and advised him to remedy this trouble by tapping -a new water supply. The defendant acted upon this advice, and built an additional reservoir, windmill, etc. The new work was completed in about two months. In the meanwhile, the defendant was obliged to move out of his house. When the new water supply was allowed to flow into the reservoir, it was found that, in spite of the fact that there was then a sufficient supply of water in tho reservoir, it failed to supply the house. An examination then disclosed that, at a point where the slope of the ground turned upward toward the house, the ground was saturated with water. This clearly indicated a break in the pipe at that point. The defendant excavated to the pipe, and repaired the break at this point. It was shown that this break occurred through the negligence of the plaintiff in bending the pipe where the ground sloped, instead of inserting an elbow in the pipe.

The plaintiff brought suit for the agreed price of the work. The defendant denied that the work was properly performed, and counterclaimed for the damages caused by the building of a new reservoir and by being forced to abandon his residence. The trial justice excluded evidence of these damages, and gave judgment for the plaintiff for the agreed price of his work, less the trifling costs of the actual repair of the break, upon the theory of substantial performance.

The judgment has established that the plaintiff has failed fully to perform his contract. If his failure to perform was substantial, he can, of course, not recover.

“ Defects must not prevade the whole, or be so essential as that the object which the parties intended to accomplish," to have a specified amount of work performed in a particular manner, is not accomplished.” Phillip v. Gallant, 62 N. Y. 256, 264.

In this case, the parties not only intended that- the pipe should be laid, but that-it should be laid in such a manner that it would bring water from the reservoir to the house. The break in the pipe was sufficient to prevent the pipe from being used for this purpose. The mere fact that, when the break was discovered, it cost only a trifling sum to- remedy the defect, is not in itself conclusive that the defect was not material. If, as the natural proximate result of the failure of the plaintiff: fully to complete, the defendant suffered substantial damages, he may show such damages, both for the purpose of showing that the contract was not substantially performed, and as a basis for his counterclaim. The sole question presented by this appeal is, therefore, whether or not proof of damages suffered by the defendant was properly excluded by the trial justice, because they were not the natural and proximate result of the plaintiff’s failure to perform. The plaintiff contended at the trial, and produced some evidence, that when he examined the pipe after the water ceased to flow to the house, there was not enough water to reach the outlet of the reservoir, and that the cost of procuring the new water supply and the necessity of abandoning the house were due to natural causes not connected with his work. The defendant, however, produced evidence to show that the water supply was amply sufficient to cover the outlet. If the records showed that the trial justice decided this question of fact in favor of the plaintiff, then there would be no merit in this appeal. The trial justice, however, absolutely refused the proof of damages- as a matter of law before deciding the questions of fact involved, and we cannot, therefore, now hold that he has decided this question of fact in favor of the plaintiff. We itmst, therefore, determine, the question whether the damage suffered by the defendant was the proximate result of the plaintiff’s failure to perform, upon the assumption that the defendant’s evidence that the failure to obtain the water at the house was due to the leak, and not to any scarcity of water, is true. It wa-s then the defendant’s duty to try to obtain water in the house at the smallest reasonable expense, and the proximate damage to him was this expense. Ordinarily, of course, the cost of unnecessary new water supply would not be a «proper item of expense. In this case, however, the defendant notified the plaintiff of the defect in his water system, and the plaintiff pointed out to the defendant that the only way to remedy it was to obtain a greater supply of water. By these acts the plaintiff has admitted that it was reasonable on the part of the defendant to endeavor to remedy the defects in the water system by obtaining a greater supply of water, and cannot now maintain that, though the defect in the system was due to his own fault, the expense incurred in attempting to remedy it was unreasonable, and not the proximate and natural damage flowing from his own failure to perform.

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Bijur, J. (concurring).

I concur in the result, because I believe that the learned trial justice erroneously excluded all evidence tending to show the necessary resultant disuse of the house by the defendant and its rental value during the period of unavailability. I cannot, however, agree that the cost of bringing in an additional water supply is to be included in the proper measure of damages. That item appears to me to be altogether too remote and necessarily outside of the contemplation of the parties when the agreement was made. My view may well be illustrated by the hypothesis that the plaintiff, instead of committing a breach of the contract by insufficient work, had deliberately refused to do any part of the work, and had, simultaneously with such refusal, advised or suggested to the defendant that in any event the water supply at the reservoir was or would be insufficient, and that, therefore, defendant should install an additional supply. Would the expense of installing the new supply be within the measure of damage for plaintiff’s breach of contract, evidenced by his refusal to perform ?

Seabury, J., concurs.

Judgment- reversed and- new trial ordered, with costs to appellant to abide event.  