
    Charles T. Willis, Respondent, v. Charles B. Webster and Others, Appellants.
    
      Contract — stipulation for liquidated damages ifwoi'h be not completed by a day cer~ tain—waiver of a right to enforce it — a delay after such day certain gives no> right to apportion such sum.
    
    In an action "brought to recover a balance due upon a building contract, the defendants interposed as a counterclaim a provision of the contract by which the plaintiff agreed to complete the work upon a day fixed, and that if he did not finish upon that day he should forfeit as liquidated damages, and not as a penalty, §360 a day until the work was completed, and alleged that there had been a delay of about a month.
    The plaintiff replied that the completion of the work within the time fixed was prevented by acts and delays of the defendants, their agents, contractors and mechanics; that the defendants gave to these persons possession of portions of the premises which were necessary for the plaintiff’s use in order to complete his work, and that the plaintiff was requested by the defendants not to complete his work until such other persons had finished theirs.
    The substantial facts of the reply were proved.
    
      
      Held, that plaintiff was excused from full performance upon the day fixed by the contract;
    That assuming that the acts of the defendants were not the cause of the whole delay, there could not be, under a stipulation for the payment of liquidated damages in case the work was not done by a particular day (the right to enforce which obligation was waived by the defendants’act) any apportion-ment of such damages based upon delay in its execution after such date;
    That such a liability must be enforced in its entirety if at all.
    Appeal by the defendants, Charles B. Webster and others, from -a judgment of the Court of Common Pleas for the city and county of Hew York in favor of the plaintiff, entered in the office of the -clerk of said court on the 8th day of July, 1895, upon the report of ■a referee.
    
      B. F. Einstein and O. J. Shearn, for the appellants.
    
      Abner G. Thomas, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover a balance due upon a building contract. The defendants by their answer denied that anything was due, and set up by way of a defense and counterclaim a provision in the contract between the plaintiff and the defendants, whereby the plaintiff agreed that in case his work on the store mentioned in the agreement should not be completed on September 20, 3893, he would pay to the defendants, or they might at their option retain the sum of $250 for each and every day that his work was uncompleted until the same was finished, and in which it was further stipulated that said $250 should be liquidated damages and not a penalty. The defendants further alleged that the plaintiff did not complete the work to be "done by him under said contract on September 20, 1893, nor until October 16, 1893, and that the defendants have suffered damage by reason of the failure to complete said work until October 16, 1893, in the sum of $6,000.

The plaintiff replied to the counterclaim, admitting that the work was not completed on the twentieth of September and alleging that he was delayed in the completion of the work, and was prevented from completing the same within the time limited, by the acts, omissions and delays of the defendants and their agents, servants and ether contractors and mechanics employed by them; and that the defendants gave to said persons the possession of portions of said building necessary to be used by plaintiff to complete his work and requested the plaintiff not to interfere with them and not to complete his work under the contract until the said work of said workmen and mechanics was completed.

Upon consent of the parties the action was referred and the referee found in favor of the plaintiff upon the ground that the defendants interfered "with the plaintiff and delayed the completion of his work beyond the time contracted for. A judgment having been entered upon such report, from such judgment this appeal is taken.

In the consideration of this appeal it will not be necessary to examine in detail the voluminous evidence which was offered before the referee upon the trial of this case.

It is claimed upon the part of the appellants that the referee erred in finding that the defendants interfered with the plaintiff and prevented the completion of his contract by refusing to permit the plaintiff to transfer certain iron. shutters from the easterly wall of the old building to the easterly wall of the new building and to connect the two buildings by doors, for the reason that the provision of the contract was that this work was to be done at the convenience of the owners. But this convenience of the owners, if they are to hold the contractor to the time limit of the contract, must refer to some suitable time within the term of the contract. They cannot wait until after the túne for the completion of the work has expired as they did in the case at bar, and then clt m that the contractor is not excused from his default in completin ; his work in time. In the case at bar the contractor wanted to re nove the shutters within the time limited by the contract, and he was requested to leave them there until a considerable time after the contract should have been completed. This delay, clearly, was through no fault of his; and when it was agreed to, it extended the time for the performance of the contract.

The appellants further claim that the referee erred in finding that the defendants’ architects, with the knowledge and consent of the defendants, prevented the completion of the plaintiff’s contract on September 20, 1893, by procuring him not to lay the wooden flooring on the first floor and to omit to put in the iron store front until ten days after September 20, 1893. The evidence is conclusive upon this point that large quantities of materials were lying upon this floor belong to the other contractors, and that the plaintiff demanded the possession of that floor in time to have completed the work, but that he was requested to leave the material there and not to complete the contract until requested by the owners. And the evidence also shows that after the plaintiff got possession, this work was completed within a short period of time.

It is further urged that the referee erred in finding that the defendants prevented the plaintiff from completing his contract on September twentieth by demanding and receiving for the convenience of other contractors the exclusive use of the elevator shafts. But if the referee did err in this respect, it does not in any manner affect the other two points upon which the referee based his decision. By the uncontradicted acts of the defendants, by their requests established beyond peradventure, the plaintiff refrained from doing those things which were necessary to complete his contract within the time limit. This being the case, how is it possible to hold him for a fixed sum as liquidated damages for non-compliance ?

But it may be said and was urged upon the argument that although this may be the condition of affairs, yet still these requests and acts of the defendants were not responsible for the whole of the delay; and that, therefore, there should be some apportionment of the delay. But in their contract these defendants were careful explicitly and with preeisio i to define the rights of the parties. They provided that the $i'50 a day was not to be a penalty, but liquidated damages. Th; re was to be no question about it. If the plaintiff delayed, he wasi o pay $250 a day as long as the delay continued. This was to be liquidated damages, and not a penalty. The plaintiff being under this strict obligation, how can he be held to it when, by the very request of the defendants, he refrained from so completing his contract as to- bring himself within the limit fixed by such contract ? If the specified day has passed, and has .passed because of the acts of the defendants, who is to determine for how much of the delay the plaintiff must pay $250 a day — this precise fixed liquidated damage ? It is manifest that when the plaintiff allowed the contract day to go by at the request of the defendants, he can only be made responsible for neglect and cannot be held under the contract. The plaintiff being absolved from the obligation of completing the building on the twentieth of September, by the express action of the defendants, such obligation could not be renewed except by express contract. The plaintiff could not know when he would be held to be in default under such circumstances ; and where, by the terms of the contract, liquidated damages are to be sustained after a given day, the plaintiff is entitled to know with precision when he is laboring under such an obligation, and not be required to leave it to the judgment of a jury as to what is a reasonable time.

It is impossible under the contract to apportion liquidated damages. Either the liability for the liquidated damage exists or it does not. It cannot half exist and half be waived. In the case at bar there was a definite contract, which was abrogated by the acts of both parties; and it requires equally concerted action to breathe life into it again — of evidence of which the case is entirely barren.

The judgment should be affirmed, with costs.

Barrett, Rumset, Williams and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  