
    Colwell Lead Company, Appellant, Respondent, v. Construction Material and Coal Company, Respondent, Appellant.
    First Department,
    May 29, 1913.
    Contract — action to recover for building materials — assignment of claim by contractor to materialmen — actions upon different claims not separately stated and numbered—trial—when court cannot set aside portion of verdict —• order that contractor stop work.
    The plaintiff, a manufacturer of plumbing fixtures, agreed to furnish material to one S., who had a contract for the plumbing work in a building under construction. The contract of' the owner of the building with S. provided, in substance, that the sums due oh the plumbing material ■ should be paid directly to the plaintiff, as assignee of S., S. being entitled to payment for work done. The defendant entered into a written agreement guaranteeing payment by the owner to the plaintiff and to S. When the work was partially completed the defendant notified S. to stop ■work, but, after delaying the work, he subsequently completed it so as to become entitled to certain payments under the contract, and the plaintiff on its part, had furnished all the material necessary to entitle it to payment. Thereafter S. assigned his right under the contract to the plaintiff. The complaint did not separately state and number the action in the plaintiff’s own favor under the contract and the action on the claim assigned by.S., but set out a single cause of action. The jury returned a verdict for the defendant.
    
      Held, that under the circumstances the court could not set a.side the verdict as to the plaintiff’s individual claim and sustain it as to the claim assigned by S., but that it should have set the verdict aside in its entirety;
    That the defendant had no legal fight to order S. to stop work and could not claim an accord and satisfaction of his claim, not having pleaded such defense.
    Cross-appeals by the plaintiff, the Colwell .Lead Company, and the defendant, the Construction Material and Coal Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1912. The plaintiff appeals from so much of said order as denies a motion to set aside the verdict of a jury in favor of the defendant upon the plaintiff’s claim for $650 and interest; and the defendant appeals from that part which directs that the verdict of a jury in favor of the defendant upon plaintiff’s claim of $1,500 be set aside and a new trial granted.
    
      Henry Hetkin, for the plaintiff.
    
      John A. Thompson of counsel [Thompson & Fuller, attorneys], for the defendant.
   Clarke, J.:

The complaint alleges that the plaintiff is a corporation engaged in the manufacture and sale of plumbing materials and plumbing fixtures; that the Gainsborough Building Company is a corporation which owned a plot of land in the borough of Brooklyn upon which it was erecting seven apartment buildings; that on or about the 30th of August, 1910, said Gainsborough Company entered into a written contract with one Abraham Sacks, by which Sacks undertook to do all the plumbing and gas fitting work in the seven buildings and to find and provide such good, proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient for the completing and finishing of said plumbing work. The price of the said labor and materials was to be $18,200 to be paid as follows: “When iron roughing is in and sewers are connected, the sum of $3-, 850 by paying $1,500 of same to the party of the second part and the sum of $2,350 to Colwell Lead Company at Lafayette & Walker streets, Manhattan, which sum of $2,350 is hereby assigned by the party of the second part to the said Colwell Lead Company, and said payment must be made direct to said Colwell Lead Company without further notice. When lead roughing is in, the sum of $2,500 by paying $1,000 of same to the party of the second part and the sum of $1,500 to Colwell Lead Company at Lafayette & Walker streets, Manhattan, which sum of $1,500 is hereby assigned by the party of the second part to the said Colwell Lead Company and said payment must be made direct to said Colwell Lead Company without further notice,” and further provisions for payment in the same fashion at different stages of the work. It is further alleged that simultaneously with the execution of said contract the defendant executed and delivered a written guaranty to Sacks and the plaintiff, guaranteeing the first payment mentioned in the within contract, $3,850, which sum the defendant afterwards paid; that for the purpose of inducing Sacks to enter into the said written agreement with the Gainsborough Building Company, and for. the purpose of inducing the Colwell Lead Company to sell and deliver plumbing materials and fixtures for the premises of said Gainsborough Building Company, and by reason of the interest that defendant had in said premises and in the completion thereof — the Gainsborough Company being indebted to the defendant in large sums of money for building materials sold to it for use in the building mentioned — the defendant prior to the execution of said written agreement between Sacks and the Gainsborough Building Company, and for a valuable consideration, agreed with Sacks and the Colwell Company, to guarantee the . first and second payments in said agreement. Pursuant to said agreement it executed, acknowledged and delivered under its seal its guaranty in writing which is as follows: “For the consideration of the siim of $1 and other valuable consideration, paid to the Construction Material & Coal Co., the undersigned, by Abraham Sacks and Colwell Lead Company, and in pursuance to an agreement had between' the parties, the said Construction Material & Coal Co. hereby guarantees to said Abraham Sacks and Colwell Lead Company, or either of them, the. second payment of $2,500 mentioned in a certain contract made between Abraham Sacks and Gainsborough Building Co. bearing date August 30th, 1910, provided, however, that all labor and materials are furnished by said Abraham Sacks and Colwell Lead Company as provided in said contract.” ■ • The complaint further alleges that thereafter the said Sacks proceeded with the performance of the contract and completed all the work mentioned to entitle him to his first payment of $3,850, which was duly paid; that he thereafter further proceeded to perform all the labor and furnish all the materials specified in said contract to entitle him to receive the second payment of $2,500, as therein designated, and did proceed with the said work until the 10th of March, 1911, when he was notified and ordered by the defendant herein to stop work on the said premises, and that like notice was given to the Gainsborough Building Company; that at the time said work was stopped the plaintiff sold and delivered on the premises aforesaid all of the plumbing material required for the lead roughing and became entitled to receive from said Gainsborough Company and the defendant under its guaranty the sum of $1,500 as specified in said contract and guaranty, and duly performed all the conditions on its part to be performed; that at the time said work was stopped Sacks duly performed all the conditions of the said contract to be performed on his part to entitle him to receive the lead roughing payment of which $1,500 was assigned to plaintiff, and in the said contract mentioned, except a small portion of the work with reference to putting in all roughing amounting to $50 which said Sacks was ready, able and willing to perform but unable to do so by reason of the order to stop; that at the time of the commencement of this action and for valuable consideration, said Sacks duly assigned all right, title and interest in and to the said contract and guaranty to Abraham Sacks, Incorporated, and thereafter said corporation duly assigned its right, title and interest in and to all sums of money due on the guaranty and contract to plaintiff; that no part of said sum of $1,500 originally assigned to Colwell Lead Company was paid, although demanded, and no part of the sum of $1,000 due to Sacks was paid except the sum of $300, leaving a balance due said Sacks on account of the second payment the sum of $700, less the sum of $50 for labor to be. performed.

A stipulation was entered into upon the trial that all the allegations set forth in the complaint in each and every paragraph, except 9, 11 and 13, are admitted. The only proof to be adduced at the trial of this action by either party is with reference to the allegations contained in paragraphs 9, 11 and 13, which said allegations defendant is deemed to have denied.

On the seventh of February all the material was on the premises for the seven houses to enable Sacks to complete the work required to entitle him to the second payment. He had proceeded after the first payment and had done some work when he received a request, as he puts it, to go slow, “And I promised Mr. Camardella that I would go slow and I did hold off a month. * * * Then I started in on the 6th of March to finish and I put on the three shifts of men. * * * No one told me to commence again. I spoke about the matter with the Colwell Lead Company and they thought that it was advisable to. go ahead. Q. So that you could sue the defendant,— yes or no? A. We did not discuss that point, but we discussed the proposition that it .would be well to complete the work and finish it so that I would be entitled to my payment.” He had almost completed when.he was notified in writing on the eleventh to stop. As Camardella put it, Sacks was requested to stop Work; that he said he wanted to be paid for what he had done; that it amounted to about $500 worth and that if he received that he would stop; that after negotiations he agreed to take $300 which was paid to him, and thereupon the work ceased for a while and when it was found that' he had started up again without being requested to he was notified plainly in writing to stop.

The court left the case to the jury as follows: “Did the defendant on. or about January 6th, 1911, through Mr. Camardella, its treasurer, request Mr. Sacks to cease work on the premises, and he did promise to do so if he received his pay for the work up to that time? To this question you will make answer yes or no. * * * In that connection the' court instructs you that if the parties at that time mutually agreed to stop the work, and if this $300 was paid by Camardella under this arrangement, then if Mr. Sacks continued the work without a request on the part of the defendant company who had given, him the notice, he did so at his peril. You see this is a very important question not only to Mr. Sacks but also to the plaintiff as well as to the defendant. * * * If you resolve all questions of fact in favor of the plaintiff and shall decide that Mr. Sacks performed his work and was not requested tó stop as defendant contends, then you come to the question of the amount. * * * On the other hand, if you shall find that the parties agreed at the time mentioned to stop work, and that work was stopped under that agreement, then you may find a verdict in favor of the defendant. Plaintiff’s counsel: I respectfully except to that portion of your honor’s charge just mentioned, that if the jury find that on the 6th of January the conversation alleged took place and that Sacks agreed to stop work, in that case they must ñud a verdict in favor of the defendant; and I ask your honor to charge the jury that if the jury find that at the time, that is on January the 6th, the time this conversation took place, or alleged conversation took place, the Colwell Lead Company delivered all of the material as called for by the contract, and that said material was on the premises at that time, that in that event there must be a verdict in the sum of' $1,500 for the Colwell Lead Company.”

The jury returned a verdict for the defendant and answered the questions submitted in the affirmative. In his opinion on the motion for a new trial the court said: “The guaranty is several and under it $1,500 was to be paid directly to the plaintiff for material furnished and $1,000 to Sacks for labor performed. So far as the Sacks claim is concerned, the jury specifically found that it was satisfied by the payment to him of $300, and the verdict so returned terminates the issue in respect of that demand. The right of plaintiff to the $1,500 rests upon different grounds. Under the contract that sum became payable to the plaintiff when the lead roughing was in, and under the guaranty it was to be paid provided the plaintiff furnished the materials called for by the said contract. If the lead roughing was in and the materials furnished, plaintiff was entitled to have the jury instructed that if they found such to be the fact they must find, a verdict in its favor for that sum. Sacks was not the agent of plaintiff. His agreement with the defendant’s treasurer in no manner affected plaintiff’s rights. The plaintiff was induced to deliver sundry plumbing materials and fixtures because the defendant guaranteed their payment, and if as guarantor it claimed the right to terminate its obligation as surety, it could only do so by dealing with the plaintiff direct.” The motion to set aside the verdict as to $1,500 was granted, and as to $650 denied. From the order entered thereon these appeals are taken.

The complaint sets out plaintiff’s claim in. one cause of action. No motion was made to separately state and number two causes of action.. Under such circumstances we do not see how the verdict of the jury can be separated and one part allowed to stand and the other set aside.

The defendant claims that it had the power to stop this work and that if it did the contract was broken and no payments became due under it. It also claims that this payment of $300 was in the nature of an accord and satisfaction, and, having been paid, Sacks had no right to do any more work and, therefore, no further sum became due which could be assigned to the plaintiff and give it a cause of action therefor.

The difficulty with this claim is that if it had the power to order the work stopped it had no legal right to do so. As matter of fact the work was not stopped but suspended and finally resumed and substantially completed. Accord and satisfaction is not plead. Nor is payment. Sacks certainly was not the agent of ■ the plaintiff and could make no agreement which would interfere with its rights. The verdict should have been set aside in its entirety.

The order appealed from should be modified by providing that the verdict of the jury should be set aside and a new trial ordered, and as so modified affirmed, and, as both parties appeal, without costs to either party.

Ingraham, P. J„ Scott, Dowling and Hotchkiss, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs.  