
    Bessie C. Pfeiffer, Administratrix, etc., Resp’t, v. James Campbell et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    Contract—Construction on.
    After having done all the work which the plaintiff’s decedent was required to do under a certain contract and as the result of a conversation with defendants, the decedent received the following paper: '■ New York, June 3, 1884. Received from James Campbell his note for $1,000, dated this day, on account of architect’s fees, leaving a balance due me. of $5,984, which Campbell agree to pay as follows: ” * * * “ which shall be in full for all services for plans of exterior and floor plans on the, buildings ” * * * This was signed by the defendants. Held, that this was not a new contract but simply a statement of the amount due for work already performed by the plaintiff’s decedent and a promise to pay it by defendants.
    Appeal from a judgment of the general term of the New York superior court affirming a judgment of the special term, in favor of the plaintiff entered upon the report of a' referee.
    
      William Henry Arnoux, for app’lts; Edward M. Shepard, for resp’t.
   Peckham, J.

This action was brought to obtain- payment for work, labor and services performed by the plaintiff’s decedent, as an architect, in drawing plans and specifications for an apartment house upon the west side of Fifth, avenue, between Fifty-eighth and Fifty-ninth streets, in the city of New York. The plaintiff alleged that such work, labor and services were worth the sum of $9,825.32; that there remained unpaid at the time of the commencement of the action the sum of $5,669, for which sum judgment was demanded, together with interest from the 3d of June, 1884.

The answer admitted the preparation of plans and specifications, but denied that the work was worth the sum mentioned in the complaint. It further set up a counter-claim and alleged that the plaintiff’s decedent neglected and refused to furnish the plans and detailed drawings in accordance with the agreement, and that in consequence of such failure, defendants were compelled to procure plans and detailed drawings elsewhere; that they were thereby delayed in the prosecution of the work upon the building, to their damage in the sum of $5,000. They also alleged as a separate counter-claim that the value of plaintiff’s services, did not exceed the sum of $1,000, and that they had overpaid him to the amount of $3,156.50.

Plaintiff replied, denying the allegations set up in the counter-claim. The action was referred to a referee, who found that plaintiff’s decedent, an architect in the city of New York, was employed by defendants to prepare general plans and specifications for the construction of the house in question, and that under such employment he prepared, between the 1st of October, 1883, and ‘some time prior to June 3, 1884, general plans and specifications for the construction of such apartment house; that the reasonable value of the work under such employment was the sum of $9,409; that plaintiff’s decedent had been paid the sum of $4,156.50 and no more, and he found as a conclusion of law that plaintiff was entitled to judgment against the defendants for $5,252.50, with interest from the 3d of June, 1884, amounting in all to $5,766.36, for which amount, together with costs, judgment was directed to be entered.

Upon the trial, evidence was given on the part of the plaintiff’s decedent in regard to the employment alleged in the complaint and tending to show an agreement between the parties for the payment on account of such services of the sum of $10,000. Evidence was also given which tended to show that on the 3d of June, 1884, defendants had paid plaintiff’s decedent (including the payment of $1,000 made on that day) the sum of $3,425, and that there was paid subsequently and before the commencement of this action $731.50, making in all $4,156.50 paid upon the contract. This would make the whole sum $9,409 as the compensation to plaintiff’s decedent for the work, labor and services mentioned in the complaint. There was ample evidence to justify the referee in his finding of fact as. to the employment and the amount agreed to be paid therefor, and the judgment of the referee, it will be seen, when added to the payments which had been made was for a less sum than the contract price as testified to by the plaintiff’s decedent.

Counsel for the defendants, however, claims that the evidence shows that there was a written contract between the parties which differed from the contract as testified to on the part of the plaintiff, and upon the assumption that such written contract was proved, the main questions are raised which were argued in this court.

After all the work had been done which, as plaintiff’s decedent claimed, was required of him by and under the oral understanding or contract which he testified to, and after certain payments had been made to him by the defendants, and on the 3d day of June, 1884, he had a conversation with the defendants in regard to the payment of the balance due on account of his services. The result of that conversation was the following paper:

“New York, June 3, 1884.
“Received from James Campbell his note for one thousand dollars, dated this day, on account of architect’s fees, leaving a balance due me of five thousand nine hundred and eighty-four dollars ($5,984), which Campbell agrees to pay as follows:
On July 1,1884................................... $500
On August 1, 1884 ............................... J50
On September 1, 1884."........................ 1,000
On October 1, 1884............................... 1,000
Balance when roof is on
$5,984
Which shall be in full for all services for plans of exterior and floor plans on the building on Fifth avenue and Fifty-eight and Fifty-ninth streets.
CARL PFEIFFER,
JAMES CAMPBELL,
J. D. PHYFE.”

The learned counsel for the defendants, claims that this paper formed a contract between the parties and that by it the plaintiff’s decedent agreed to do all the work necessary for the plans for the exterior and floor plans of the building, and that such agreement included detailed drawings or specifications, which the plaintiffs decedent in his oral testimony distinctly swore were not included in his agreement with the defendants, and which, as .matter of fact, he did not make.

We think that no such construction can be given to the paper as claimed by the counsel for the defendants. It seems tons on its face to be simply the acknowledgement of the receipt from James Campbell, one of the defendants, of his note for $1,000, which was to be a payment on account of the architect’s fees, and an acknowledgement that after such payment, there would remain due the balance stated in the receipt, and that Campbell therein agreed to pay that balance in monthly payments up to a certain amount, the balance thereof to be paid when the roof of the building was on. And that this sum—that is this balance then due—was to be in full for all the services which the plaintiff’s decedent had then performed.

Under the agreement, as testified to by plaintiff’s decedent, he had then performed all the services which he bad agreed to perform, and there remained only the duty on the part of defendants to pay to the plaintiff the balance of the compensation agreed upon, all of whicli was then due.

While this payment was thus due (the services having been performed), this conversation was had between the plaintiff’s decedent and the defendants, by which, without consideration, he agreed to accept payment of the balance then due him in future payments of monthly instalments up to a certain amount therein stated, and the balance when the roof of the building was on.

Being without consideration, and the money being then due, the agreement to wait for several months for the payment was of no validity. But although not valid, the plaintiff’s decedent did, nevertheless, wait some time before commencing the action, although the defendants neglected to pay the balance spoken of in the paper at the times therein mentioned, or at all.

It is true the action was commenced before the roof was on. But it was not commenced until after the breach on the part of the defendants of their agreement to pay as stated in the paper. It formed no bar to the prosecution of this action.

There is no contradictory evidence in regard to the amount which has been paid by the defendants, and the recovery on the part of the plaintiff is in accordance with the statement contained in the paper as to the amount which was due at the time it was signed.

Evidence was also given on the part of the plaintiff under defendants’ objection, that the value of the services of the architect was very much larger than the agreement he testified to. The recovery is, however, in accordance with the amount acknowledged in the paper to have been then due. So that in no event have the defendants been injured by the manner in which the cause of action was stated in the complaint, or in which the trial was conducted.

Holding that this paper is not such a contract as is claimed on the part of the defendants’ counsel, and that it in substance is simply a statement of the amount due for work already performed by the plaintiff’s decedent, and a promise to pay it by defendants, all the other questions which were argued by the defendants’ counsel, and which hinged upon the paper, being a contract of the nature stated, become immaterial.

We think that the trial was conducted with eminent fairness by the referee, so far as this record shows, and that no errors were committed by him to the prejudice of the defendants.

The judgment should be affirmed, with costs.

All concur.  