
    Home Bank, App’lt, v. John C. Drumgoole, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1888.)
    
    1. Bills and notes—What is not a bill of exchange.
    On the 34th of July, G. and A. entered into a contract with defendant to build a certain fence for $1,150. On the 31st of the same month the defendant accepted the following order: “$1,150. New York, July 31st, 1883. Forty days after date pay to the order of Guy & Amery, eleven hundred and fifty dollars, and charge the same to account of contract. On account of contract when completed and satisfactory. Guy & Amery. To Rev. Father Drumgoole, No. 3 Lafayette place.” Meld, that the order was not a bill of exchange absolutely payable at the end of forty days, whether the contract was then completed or not. That defendant was not obligated to pay prior to the performance and completion of the contract.
    3. Accepted older, to pay money—Defense to action on.
    Where a party to a contract accepted an order payable when the work contracted for was completed, he cannot defeat the performance, and when sued on said order set up non-performance as a defense to the action.
    Appeal from a judgment of the supreme court general term, first department, affirming a judgment in favor of defendant entered upon a nonsuit granted at the trial of this action at a circuit court.
    
      William F. MacRae, for app’lt; John J. Macklin, for resp’t.
    
      
       Reversing 38 Hun, 644, mem.
      
    
   Earl, J.

—On the 24th day of July, 1883, Guy & Amery, entered into a contract with defendant, the terms of which are contained in the following letter addressed by them to him:

New York, July 24, 1883.

Father Drumgoole:

Reverend Sir—We are prepared to make and put up complete the wire fence, as described to us by Mr. Newman, being, more or less, 450 feet long by 6 feet high, made of No. 6 wire, 2-inch mesh, in J-8 grooved iron frames, and furnish and set the required stone blocks 8 inches by 8 inches by 8 inches for foundation and smaller stone blocks for the necessary stays, which stays shall be of 3-4 inch iron. The railing to include four pairs of gates 6 feet wide each pair, with arched tops. The gates to be furnished with latches and padlocks, and the whole railing to be ornamented at top with pickets of three prongs, so> that the boys cannot get hold. The whole to be painted with three coats of paint and to be made a first-class job in every respect. For this job we will charge you $1,150 (one thousand one hundred and fifty dollars).

Yours respectfully,
GUY & AMERY.

Thereafter on the 31st day of July, 1883, they drew upon the defendant the following order:

New York, July 31, 1883.
$1,150.
Forty days after date, pay to the order of Guy & Amery, $1,150, and charge the same to account of contract!
On account of contract when completed and satisfactory.
GUY & AMERY.
To Rev. Father Drumgoole,
No. 2 Lafayette Place.

which was accepted by the defendant by writing upon the face thereof “ accepted ” and subscribing his name thereto. The order was on the day of its date indorsed by Guy & Amery and delivered to and taken by the plaintiff in the regular course of banking business, and the whole amount thereof was placed to the credit of Guy & Amery in the bank. The order was, at the expiration of the time specified therein to wit: Twelfth of September, 1883, presented to the defendant for payment, which was refused; and in March, 1884, this action was commenced^ to recover the amount payable thereon. The defense relied upon is that the work which Guy & Amery contracted with the defendant to do was not fully performed, and that therefore the money upon the order had not become due and payable;, and it was upon that ground that the plaintiff was non-suited at the trial.

We are of opinion that upon the whole evidence given by the plaintiff, it should not have been non-suited and that the case should have been submitted to the jury. We agree with the defendant that the order was not a bill of exchange, absolutely payable at the end of forty days, whether the contract was then completed or not. It was drawn by the contractors to their own order and accepted by the defendant before any work under the contract had been done. It is against every probability that he intended to accept the order and obligate himself absolutely to pay the contract price, whether the work was performed or not. It was the clear intention of the parties that the money specified in the order should be paid when the contract was completely performed, and not before; and by accepting the order, the defendant became obligated to pay it only according to its tenor and effect, and he was not therefore obligated to pay prior to the performance and completion of the contract. It is quite true that the specification of forty days after date, as the time for payment of the order produces some doubt and confusion. But the time was probably inserted with the-expectation that the contract would be performed, as it could have been within that time, so that the money should not in any event be payable in a shorter time. It is difficult to give any proper meaning to the words “on account of -contract when completed,” if the amount was to be absolutely payable at the end of forty days, whether the contract was then complete or not.

But, we think, under the evidence, the defendant was not in a position to dispute the performance of the contract. There is evidence tending to show that performance had been delayed from time to time by changes required by him in the work to which he was not entitled under the ■contract, and that the whole contract was completed with "the exception of the painting. Guy & Amery had claimed that they had done extra work at the request of the defendant for which he had become liable to them in an amount greater than the cost of painting, and that the amount due them for such extra work should stand in the place of painting which the defendant should himself do. This the defendant declined, and Guy & Amery thereafter ceased further performance of their contract. But the president of the plaintiff having an interest on behalf of the plaintiff that the contract should be performed in order that the money should become due upon the order, made some arrangement with Guy & Amery by which the plaintiff was to finish the work upon the contract; and in pursuance of that arrangement he went to the defendant with two workmen whom he employed to go on and complete the work contracted for by Guy & Amery, and those men the defendant would not allow to do the work, as he did not “like them;” and he then said to plaintiff’s president, “I will finish■ the.work myself, and don’t you pay Mr. Amery any more money; reserve the $100 which you have agreed to pay him because I have got to be at some expense, and when the work is done I will notify you and you can pay the $100,” and then the plaintiff’s president left the defendant upon that agreement and understanding, and thereafter did not see or hear from him. The defendant did not, in pursuance of that agreement, paint the fence, and in that respect the contract of Guy & Amery has never been performed.

We are of opinion that it was the duty of the defendant to permit the plaintiff to do the painting and thus finish the contract; and, having refused to do so, he cannot now complain that the contract was not completely performed. He could not defeat performance of the contract and then set up non-performance as a defense to this action. Risley w. Smith, 64 N. Y., 576.

The proof tends to show that $100 was more than sufficient to pay the expense of painting, and the defendant having agreed for that sum to do the painting was bound to do it, and could not omit to do it, and then set up that it had not been done as a defense to this action. It was his own fault that the fence was not painted. He could paint it and claim the $100, or he could omit to paint it and take the $100 and paint it at his will. Therefore, resting upon this agreement, upon the evidence as it now appears, the plaintiff was entitled to recover the amount of the order, deducting the $100.

So in any view we can take of this case there was evidence which should have been submitted to the jury, and which, if believed, would have established the plaintiff’s right of recovery.

The judgment should be reversed and anew trial granted, costs to abide event.

AH concur.  