
    Abraham B. Merserau et al., Resp’ts, v. Annette Villari, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Order—Liability.
    The obligation of an acceptor of an order drawn by a contractor upon the last payment under a building contract, is contingent upon the contractor's earning such payment.
    
      S. Same.
    If no money becomes due under the contract upon such installment, the payment of the order does not become obligatory.
    3, Same.
    But the acceptor cannot set up his own default to render the order inoperative.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial upon the minutes of the court.
    
      Robert W. Todd, for app’lt; W. J. Powers, for resp’ts.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict of a jury and also from an order denying a motion for a new trial upon the minutes of the court.

The action was based upon a written instrument in these words:

“ Port Richmond, April 18, 1892.

“Annetta Pillari will please pay to Mersereau Bros, three hundred and forty-nine 54-100 dollars out of last payment, to become due to me on my contract with you for the erection of a house on Bay street, Clifton, Staten Island.

“ Denis Keeley & Sons.”

Written across the face of the paper were these words: “Accepted, Annetta Villari.”

It appears from the case that the defendant made a contract with Keeley & Son for the erection by them for her of a house for which she agreed to pay them $1,600 in four installments of $400 each.

The plaintiffs furnished materials to the contractors for the construction of the building, and they gave him the order therefor as we have already stated.

The action was defended upon the ground of the failure of the contractors to perform their agreement and so that last payment never became due them.

It is to be stated at the outset that the contract, the order and acceptance must be construed together, and considered in connection with each other.

Every acceptance of a draft or order constitutes an agreement to comply with the request contained in the instrument. It is an undertaking to pay according to the assent when due.

By the acceptance of the order the defendant became liable to pay the order out of the last payment to become due Keeley & Son, under their contract with the defendant for the erection of the house.

The obligation of the defendant was not therefore absolute, but was dependent upon the contingency of the earning of the last payment by the contractors.

If,therefore,without the fault of the defendant, no money became due under the contract upon the last installment, the payment of the order did not become obligatory.

But the defendant cannot set up her own default to render the order inoperative, she could not wrongfully prevent the creation of the fund, and then set up its failure as a defense to an action on the draft Gallagher v. Nichols, 60 N. Y., 438; Risley v. Smith, 64 id., 576; Home Bank v. Drumgoole, 109 id., 65; 14 St. Rep., 40.

It was claimed upon the trial that the contractors were wrongfully prevented from completing their contract by the defendant and there was some testimony to support that contention.

The trial judge therefore charged the jury in accordance with his ruling upon the motion for a non-suit, that the real question narrows itself right down to this:—Whose fault was it that Mr. Keeley did not finish this house? If it was his own fault, Mr. Merserau, who really is a disinterested party in this transaction and has nothing to do with the relations of these other parties except his interest in getting his money, must lose his money as against this defendant. Of course he has a claim against Mr. Keeley notwithstanding that. But if Mr. Keeley was not in fault, and Mrs. Yillari wrongfully prevented him from finishing the house, then Mr. Mersereau is entitled to recover this amount of money.

There was no exception to this charge, but the question is raised by the denial of the motion to dismiss the complaint.

The jury found a verdict for the plaintiffs for the amount of their claim, and so must be presumed to have found that the defendant wrongfully prevented the contractor from finishing the house.

Under the authorities to which we have referred the verdict is in accordance with well established rules of law and the judgment and order should be affirmed with costs.  