
    William Anderson et al., Resp'ts, v. George W. Steitz, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1894.)
    
    1. Appeal—Waiveb.
    Where a cause of action, not alleged in the complaint, has been tried by the consent of the parties, it is too late, upon appeal, to raise any question as to its irregularity.
    2. Evidence—Bubden of proof.
    In an action for services, where the contractor fails to complete the contract within the stipulated time, the burden of proof is on him to excuse the delay, and not upon the employer.
    Appeal from a judgment of the Monroe county court in favor of the plaintiffs against the defendant, for $362.46 damages and $64.50 costs.
    
      Eugene Van Voorhis, for app’lt; Fanning & Williams, for resp'ts.
   Lewis, J.

One James P. Kane entered into a contract with the defendant to do the carpentry work upon some buildings in the city of Rochester, at the agreed price of $7,000. He proceeded with the work under the contract, and, during its progress, at the request of the defendant, he-did some extra work upon the buildings. > He assigned to the plaintiffs his claim against the defendant for work upon the buildings, and they brought this action in the Munroe county court, claiming in their complaint to recover $580.27, as a balance due under the contract referred to.

The action came on for trial, and at the close of the evidence, at the suggestion of the presiding judge, the jury was excused and the case was submitted to the court for its decision, and the court thereafter found and decided that the plaintiffs, as such assignees, were entitled to a judgment against the defendant for $326, with interest thereon from June 1, 1890, and a judgment was thereupon entered, and the defendant appealed therefrom to this court.

It appeared upon the trial that Mr. Kane, the contractor, had been paid the entire contract price of $7,000, prior to his making the assignment to the plaintiffs.

Without objection by the defendant the question of extras was litigated upon the trial; the plaintiffs proved that Mr. Kane did extra work upon the houses at the request of the defendant, and the value thereof. This was not the cause of action alleged in the complaint, but it being tried by the consent of the parties it is too late, upon the appeal, to raise any question as to its irregularity. The defendant interposed as a defense to the action a claim for damages arising out of a breach of the contract on the part of Kane, which he claimed to set off against the plaintiffs’ demand. Judging from the record it would seem that the case was tried in a rather confused and unsatisfactory manner, and it is somewhat difficult to determine the theory upon which it was finally decided. It was the plaintiffs’ contention that the extras were of the value of $700.40, the defendant claimed to have an offset arising out of the breach of the contract, amounting to $857.03. A Mi1. Crouch testified that Kane and the defendant had an interview in his presence, after the work was completed, and before the assignment to the plaintiffs; that the parties looked over the items composing the extras, and that it was agreed by them that they amounted in value to the sum of $513.40, The trial court found and decided that the parties had such an interview and that they adjusted the value of such extras at that sum; he further found that the extras were reasonably worth that amount. One item of the damages claimed by the defendant was for damages arising out of the failure of Kane to complete his contract within the time agreed upon amounting to $680.27. The trial court, and we think upon evidence justifying his finding, rejected this item of damages. There was evidence to show that at the time of the looking over the accounts as mentioned, the defendant paid Kane the difference between $857.03 and $680.27, being the'sum of $176.76. Ho account seems to have been taken of this payment by the trial court in making his decision.

The defendant made other claims for damages arising out of injuries to his house and furniture caused by defects in the roof of the house. The court found that the defendant was entitled to $354.27 for such damages, which should be set off against the plaintiffs' claim. Some of the reasons given by the trial court for disallowing the claim for demurrage are not very satisfactory.

The contract called for the completion of the work by Kane on or before the 1st day of March, 1890. He concededly failed to complete the. contract within that time, but there was evidence tending to excuse his default. In that respect the burden of proof was on the plaintiffs to excuse the delay in completing the work, and not, as the trial court seemed to think, on the defendant ; but as stated, we think there was sufficient evidence justifying the conclusion the court came to on that question.

The court having found that the extras were of -the value of $513.40, and that amount had been agreed upon between the parties as their correct value, and having found that the setoff to which the defendant was entitled was $354.27,’ it would seem to follow that the amount the plaintiff was entitled to recover was the difference between these two sums, to wit, $159.13, instead of the sum of $326, as found by the court; this latter amount was manifestly arrived at by deducting the defendant’s bill of $354.27 from $680.27, that being the amount the court in another part of its decision found was due and unpaid for said extras. The findings in that regard are inconsistent, and we fail to find any satisfactory evidence to sustain the latter findings.

The provision against assigning the contract or any interest in it, to which oirr attention is called by the appellant’s counsel, evidently did not relate to an assignment of a claim for any amount which might be due upon the contract. The purpose of the clause undoubtedly was to prevent the contractor from subletting any part of the work.

There should be a new trial of the action with costs to abide ¿nt, unless the plaintiff stipulates to reduce the amount of w— am ages to $159.13, with interest thereon from June 1, 1890; and if such stipulation be given, and the judgment reduced accordingly, it should be affirmed, but without cost of this appeal to either party.

Dwight, P. J., and Haight, J., concur.  