
    Louis Richard, Respondent, v. William A. Clark, Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Action on a contract — Recovery must be had secundum allegata et probata — When, in an action for damages fer delaying completion, there can be no' recovery for extra work — What constitutes extra work—Construction of a clause that, if the owner delays the work,, the time for performance shall be extended correspondingly — Effect* upon a claim for extra work, of a clause limiting the net cost of completion to a fixed sum.
    A complaint alleged a written agreement made between the plaintiff and the defendant whereby the plaintiff was to provide all materials for and perform all work, shown on drawings of the-defendant’s architects, for a plaster model of his residence, to be finished by Dec. 15, 1898, at a price of $1,000, that the plaintiff furnished all the materials and did all the work but did not, until Feb. 15, 1899, complete the model because of alleged unreasonable delay of the architects in furnishing the drawings, causing, him, for reasons alleged, increased expense, and for this delay and consequent expense he asked and recovered damages in excess of $1,000, which sum lie admitted had been paid him. Upon the trial the plaintiff proved the delay and, against the defendant’s objection that it was extra work, for which kind of work no claim was made in the complaint, was permitted to prove that frequently after Dec. 15, 1898, after work on parts of the model had been correctly-completed, according to the drawings furnished, they were materially changed by the architects and the work done on those parts-of the model thereby rendered useless. The written agreement provided that if the plaintiff was delayed by the neglect, delayer default of the owner or of the architects, the time fixed for completion of the work should be extended for a period equivalent to-the time lost by any or all of those causes and, further, that the net cost of all labor and materials should not exceed $1,000, which sum was covenanted to include all changes and alterations required by the architects.
    Held, that, as the complaint was framed merely to recover damages for unreasonable delay in furnishing the drawings, the admission of the testimony as to the work correctly done on parts of the model according to the drawings furnished and rendered useless by subsequent changes in them — and which work was recoverable for, if at all, only as extra work — was erroneous, and that, under the rule that a recovery must he secundum allegata ,et probata, the verdict for the plaintiff could not be permitted to stand under .proofs erroneously admitted as a measure of damages for delay. ,
    
      Semble, that the plaintiff could not in any event recover damages for delay as it was contemplated by the parties, as appeared from the clause providing for an extension of the time of completion of the work, in case of the owner’s or architects’ delay, commensurate with the time so lost.
    That this time clause affected the plaintiff alone and was intended to absolve him therefrom to the extent and in the manner provided by the contract.
    
      Semble, that, in the absence of proof that the architects had authority to order changes affecting the contract price, the clause, providing that the net cost should not exceed $1,000 and should cover all changes and alterations required by the architects, would prevent any recovery for extra work.
    Appeal by the defendant from a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    Atwater & Cruikshank (Alfred B. Cruikshank, of counsel), for appellant.
    Dunpky & Pearsall (Edward J. Dunphy, of counsel), for respondent.
   Gtkeektbaum, J.

The complaint alleges that the plaintiff agreed “ to provide all the materials and to perform all the work shown in the drawings prepared ” by certain named architects, “ for a quarter-inch scale plaster model of the residence ” of the defendant; that by the terms of the agreement it was provided “ that plaintiff should complete the several portions and the whole of the work above described on or before the 15th day of December, 1898, and that he should receive in payment of all his said work and material the sum of One Thousand Dollars ”; that plaintiff “ fully completed said work and provided all the materials in accordance with the terms of said contract.”

Plaintiff further alleges:

“Fourth. That plaintiff did not complete said plaster model of defendant’s residence, at the time mentioned in said contract, viz., on the 15th day of December, 1898, for the reason that he was unreasonably interrupted and was unreasonably prevented from so completing it, by the continued and unreasonable neglect and refusal and failure of defendant’s said agents and architects to provide and furnish the plaintiff the drawings, plans or specifications for the said work and that said continued and unreasonable neglect, refusal and failure were a disregard and violation of the duty which defendant and his agents owed plaintiff, and hindered, delayed and obstructed him in his work under said contract.
“ Eighth. That for all the work and material furnished by plaintiff under said agreement up to Decembe'r 15th, 1898,, and up to the completion and acceptance of said model on or about February 15th, 1899, defendant has paid plaintiff only the sum of one thousand dollars and defendant, his said agents and architects, have, after due and proper request, wrongfully refused and neglected to fix or determine the loss or damage sustained by plaintiff and to fix and determine the increased cost caused by the continued and unreasonable neglect, failure and refusal of said agents and architects to furnish the drawings, plans and specifications, as provided in said contract.
Ninth. That the unreasonable refusal, failure or neglect of defendant’s said agents and architects to furnish to plaintiff the drawings, plans and specifications so as to permit him to complete said work and furnish said material within the time specified in said contract and their unreasonable neglect, failure and refusal to furnish to plaintiff the complete drawings, plans and specifications for said work and materials until on or about the 9th day of February, 1899, and their orders and directions given to plaintiff after December 15th, 1898, to keep himself and his men in readiness to proceed with the work on said model as soon and as fast as drawings, plans and specifications for the- said work would be furnished by them and the carrying out of said orders and directions by plaintiff delayed, interfered with, interrupted and seriously damages plaintiff in his work on said model and necessarily rendered the course of plaintiff’s said work much more expensive than contemplated by the parties at the time of the execution of the contract and necessarily compelled plaintiff to expend and incur the expenditure of sums of money not otherwise necessary to be expended or incurred— to his damages and loss in the sum of One thousand five hundred dollars.”

Appropriate allegations as to demand and refusal of architects to furnish certificates are found in the complaint.

The work was prepared and the materials were furnished under a written agreement between the parties which, among other things, provided as follows:

“Abt. "VII. Should the contractor be obstructed or delayed in the prosecution or completion of his work by the act, neglect, delay or default of the Owner, or the Architects, or of any other contractor employed by the Owner upon the work, or by any damage which may happen by fire, lightning, earthquake or cyclone, or by the abandonment of the work by the employee through no fault of the Contractor, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid; but no such allowance shall be made unless a claim therefor is presented in writing to the- Architects within twenty-four hours of the occurrence of such delay. The duration of such extension shall be certified to by the Architects, but appeal from their decision may be made to arbitration, as provided in Article HI of this contract.
“Ajbt. IX. It is hereby mutually agreed between the parties hereto that the sum to be paid by the Owner to the Contractor for said work and materials shall be the net cost of all labor ánd materials and shall in no case exceed the sum of One thousand and no/100 ($1,000 no/100) Dollars, which sum shall include the cost of all changes and alterations of said work that may be required by the Architects, and that such sum shall be paid in current funds by the Owner to the Contractor in installments, as follows:”

The proofs submitted on the trial, in the plaintiff’s behalf, tended to establish that the architects delivered forty-seven separate detailed drawings for the model, fourteen of them before December fifteenth (the contract time for the completion of the work) and thirty-three after December fifteenth; that plaintiff frequently demanded the detailed drawings, which, under the contract, it was the duty of the architects to furnish; that he was told by the architects that they were not ready but would be furnished as quickly as they were prepared; that many of the detailed plans covered parts of the model, which had been already correctly done in accordance with a previous plan, thus rendering useless a large quantity of valuable work which had been done in strict conformity with the previously delivered plans; that in some instances plaintiff received as many as four or five different plans for the same part of the model, although in each case the work had been satisfactorily done in accordance with each of the previous plans, thus necessitating the doing over again of many different parts which had been fully completed.

The plaintiff’s damages were for the moneys by him expended for labor in connection with the work and the value of his own services from December fifteenth, the date fixed in the contract for completion, to February ninth, when the model was finally completed and accepted, and it was upon this measure of damages that a recovery of $1,500 was had against the defendant.

Sufficient has already been stated to show that, while the complaint is framed for damages sustained upon the theory of a delay occasioned by the defendant’s architects in furnishing the detailed plans, the proofs not only show the delay complained of, but, in addition and in great part, tend to establish many and important changes from time to time in the various detailed plans after the work had been properly completed under previous plans, so that if any recovery would lie. on the latter score it would be on the theory of extra work. The defendant’s counsel not only' objected to all testimony relating to extra work, but made appropriate motions and took exceptions, at the close of plaintiff’s case and of the entire ease, which entitle him to a review of the errors in that respect claimed. It is unnecessary to do more than to refer to the rule that the recovery must be secundum allegata et probata, and that the verdict of the jury may not be permitted to stand under proofs which were erroneously admitted as a measure of damages for delay.

Eor am I satisfied that any damages in the case are recoverable either for a delay or for extra work.

The claim for delay was necessarily based upon the failure of the defendant’s architects to furnish the detailed plans in time, as to. which the contract provided that, if the contractor be delayed in the prosecution or completion of ■ his work by the act, neglect, delay or default of the owner or the architects, * * * then the time herein fixed for the completion of the’work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid.” The contract, therefore, explicitly contemplated a situation such as has here arisen, and the intention of the parties, as evidenced by the agreement, evidently was that the time clause affected the plaintiff alone and that he might be absolved therefrom to the extent and in the manner provided in the contract.

So, too, with respect to any claim that may be made upon the theory of extra work. The contract in Article IX expressly provides that the sum of $1,000, which it was agreed shall be the maximum cost to the defendant of all labor and material,” was to “ include the cost of all changes and alterations of said work that may be required by the architect,” and it is difficult to understand how a recovery may be had for extra work upon the facts presented. There is no allegation nor any .proof that the architect had the authority to order alterations which would affect the price fixed in the contract. The architects were the agents “ for the purposes of the contract,” but not for the purpose of making additional contracts upon which claims for extra work must necessarily rest. If it be argued that the extra work imposed was unreasonable and unfair, then it may be answered that there is no allegation in the complaint which would permit of a finding that the contract did not contemplate the nuim"ber and kind of alterations, in plans, that the architects made.

For the reasons stated the judgment must be reversed.

Freedman, P. J., and Leventritt, J., concur. .

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