
    Jacob F. Wyckoff, as Executor of Emily F. Wyckoff, Deceased, Respondent, v. Catharine Taylor, Appellant.
    
      Building contract — suit for the performance of the contract and. on quantum meruit, distinguished—relative proofs required — architect’s certificate — time of the essence of the contract — acquiescence in delay, not an estoppel.
    
    Time is, prima facie, of tlie essence of a building contract, and a failure to complete within the period designated is a breach of the contract justifying its termination and the removal of the contractor.
    The failure of the owner to discharge the contractor as soon as he runs over his time does not prevent him from doing so subsequently. The failure to complete is a continuing breach, authorizing the contractor’s removal at any time,
    In order to j ustify a recovery upon a qucmtum meruit, there must be specific proof of the amount and nature of the services rendered, and their value. This is true although the work is covered by a written contract between the parties. The plaintiff must either proceed under and in accordance with the written agreement, or waive the benefit of its terms.
    The plaintiff’s.testatrix brought this action as the assignee of K., alleging that K. made an agreement with the defendant to furnish her certain labor and material ; that he was prevented from completing, and that the amount due when he stopped was a sum named. At the trial plaintiff proved the execution of a written contract by K. and the defendant, whereby the former agreed to erect a building on the latter’s land, according to certain plans and specifications, for a price named; also an agreement for certain extra work. The whole amounted to §5,200. Payments were to be made as the work progressed upon the architect’s certificate. The work was to be completed “on or'about the 20th day of March, 1885,’’ and the defendant expelled K. from the premises about, the middle of the following April, or thereafter. K. testified that, at this time, substantially all the work contracted for was completed. Upon this proof the plaintiff rested, and the defendant moved to dismiss the complaint on account of the failure to plead and prove the giving of a certificate by the architect, which motion was denied. The defendant then proved conclusively that the work was not completed, or substantially completed by K. when he left, and gave evidence as to the amount and value of the work which she was compelled to supply. Bebutting evidence was given on these heads, and the case was closed. The motion to dismiss was renewed and denied. The referee awarded the plaintiff the full contract price of §5,200, less all payments, and what he found to be the reasonable expense of finishing the uncompleted work.
    
      Held-, error;
    That, treating the action as one brought upon a - quantum meruit to recover the reasonable value of the work done, the proof did not conform to the pleading, there being no detailed evidence of the work done, and no evidence of its value.;
    That the plaintiff was not at liberty to take the contract price as the value of the work;
    That the plaintiff made no proof, even prima fade, of any cause of action except one to recover the contract price;
    That defendant had the right to hold plaintiff to the position thus assumed, and to treat the action as one brought under the contract; and that, as he failed to establish a cause of action thereunder, the judgment could not be sustained.
    Appeal by the defendant, Catharine Taylor, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of the said court on the 26th day of July, 1895, upon the report of a referee.
    The original plaintiff, Emily F. Wyckoff, brought this action as assignee of John J. Kierst'and William F. Morgan, to recover for work done and material furnished to the defendant upon land owned by her in the city of ISTew York. The referee awarded $6J0.95 upon the Kierst claim, and $300 upon the Morgan claim.
    The complaint alleges, for the first cause of action, that Kierst made a con tract with the defendant on January 20, 1885, to furnish certain labor and material, and “ That said Kierst furnished the materials and performed the work provided in said contract, so far as he was allowed to do so by defendant, and on or about April 20, 1885, said defendant prevented said Kierst from completing said work under said contract, leaving due and unpaid the sum of $1,900, which sum is still due and unpaid.” The contract was a written one, and is in evidence. By it Kierst agrees with thu defendant that he “ shall and will, for the consideration hereinafte' mentioned, on or about the 20th day of March, 1885, well and snf ficiently erect and finish ” a certain building :— an extension to another building .owned by the defendant — in accordance with certain plans and specifications, and to the satisfaction of the architect; also, that he will do certain work upon the old building. The contract price is $4,900, to be paid in four installments, as the work progressed, upon the architect’s certificate, approved by the building department. At the trial the plaintiff, after introducing the corn-tract in evidence, put the assignor Kierst upon the stand. He testified to an additional agreement to do certain extra work for $300; that the defendant expelled him and his men from the premises ; but that, at the time of such expulsión, lie had substantially completed all the work. On this evidence, coupled with proof as to ownership of the cause of action, the plaintiff rested.
    The defendant moved to dismiss the complaint on account of failure to plead and prove that the necessary certificate had been given by the architect. Tlie motion was denied and the defendant excepted. She then gave evidence as to the amount and value of the work which Kierst had left undone, and which she was obliged to supply. The plaintiff gave rebutting evidence on these heads. The case was then closed, the defendant renewed her motion to dismiss and it was again denied, and an exception taken. The referee awarded the plaintiff the full contract price of $5,200, less such sums.as had been paid and such as he found that the defendant had been compelled to expend in order to complete, the work.
    
      Benjamin Scharps, for the appellant.
    
      B. C. Chetwood, for the respondent.
   Barrett, J.:

There can be no doubt from the complaint — and the position was ' emphasized by an admission of plaintiff’s counsel during the examination of the witness Schildwachter—-that the action was to recover upon a quantum meruit for the reasonable value of the work and material furnished by Kierst, not for damages for breach of contract. But the proof did not conform to the pleading and admission. No detailed evidence was. given of the- work and material, and its value. Kierst simply testified, generally, to fulfillment of the contract on his part. The plaintiff thus made out a prima facie case for a recovery of the full contract price, less the sums paid thereon. He made out no other cause of action, nor did he attempt to do so. The defendant had a perfect right to hold him to the position thus deliberately taken, and the complaint should have been dismissed, unless facts were shown dispensing with the necessity for the architect’s certificate. It was not necessary to base the motion to dismiss upon the specific ground that the evidence was insufficient for a recovery upon a quantum meruit. It appeared, beyond dispute, that the proof had been confined to what was requisite for a recovery upon a different ground, namely, substantial fulfillment of the contract. The' most that could be required of the defendant’s counsel was that he should point out the change in the theory of the action, and state that his motion was made in view of it. This lie clearly did. No architect’s certificate was shown, nor was evidence given that such a certificate was requested and unreasonably refused. This was the condition of the case when the plaintiff rested •—• as he did —upon Kierst’s testimony that the contract had been substantially fulfilled. But this prima facie' case of fhlfillment fell as the trial proceeded; and, when the testimony was all in, it appeared beyond a doubt that the contract had never been fulfilled. Indeed, the trial, after the plaintiff rested, proceeded mainly upon a dispute as to the cost- of work which was confessedly unfinished at the time Kierst was stopped; and it was indisputably proved that items of work of prime importance, costing hundreds of dollars to supply, were unfinished when he left. Under this state of the proof, the motion to dismiss was renewed and again denied. This is not, .therefore, the common case of a contractor proving full performance to show that the architect’s refusal was unreasonable.

The plaintiff’s whole claim is based upon an erroneous view of his positiou at the time he was stopped. Kierst agreed to complete the work on or about the 20th day of March, 1885.” He testifies that lie was expelled the latter part of April or beginning of May ; the defendant that it was on April fourteenth. In either case it was over three weeks after the work should have been turned over complete to the defendant. No excuse for this delay, having any substance, is given. The defendant was not to blame in any way, and the plaintiff, with great philosophy, treats it as one of the necessary evils which an owner is compelled to put up with when he enters into a building contract.

. It is impossible, however, for the law to overlook this breach with the same easy good nature. If the provision of the contract as to time is to be overlooked, it must be because the case falls within that narrow class where courts have always, held time not to be of the essence of the contract. .On this head Parsons .says-: “The court will always inquire into the time when a thing is to he done, as they will into any other part of the contract; * * * if it seems that the whole value, or a material part of the value, of the transaction * * * depends upon its being done at a certain time, and no other, or that the substitution of any other will subject him (one of the contracting parties) in any way to loss or' material inconvenience, then time is certainly of the essence of the contract so far as he is concerned, and the court will so regard it.” (3 Pars. on Cont. 384-386.)

Most certainly this case is of the class thus referred to. The defendant testified, without contradiction, that she saw the deláy .would result in her not being able to 'rent the building when the season'came. But it required no such ■ testimony to show that time was, here, of the éssence of the contract. It was manifest from its very nature that delay meant loss of rents.

■ Nor did the defendant, waive her right thus .to terminate the contract. It appears that she did not expel Iiierst at once when he ran •over his time. But this cannot be construed.into a consent that he might go on, in any event, until he snould get the work-done. An owner may be willing to wait fór a brief period without being willing to wait indefinitely. The continued failure on the contractor’s part to complete the work is a continuous breach of the contract,, of .■which the owner may avail himself at any Time. To hold otherwise would put the owner completely at the mercy of a dilatory ■contractor. .

We do not mean to intimate that the owner may induce the contractor to continue work under the belief that the contract is still in existence, and then refuse to pay him for the work so done. We are not here concerned with the work already done. The question presented by the plaintiff’s claim, now under consideration, is whether Kierst had the right to remain and finish his work'; and we must hold that he had not. Having failed to complete when he agreed to, the defendant had the right to make him give way to speedier contractors. Thus the plaintiff failed to show a right to recover the contract price of $5,200, and the whole basis upon which the referee made his award is erroneous. As the plaintiff insisted upon recovering the contract price, the defendant was justified in demanding proof that his assignor had earned that sum in accordance with the terms of the contract. He made such a demand at the proper time and in the proper manner.

If the plaintiff' seeks to recover upon a quantum meruit, he must prove' what it was he did which was not paid for under the contract, and its value. He cannot throw upon the defendant the burden of showing what he omitted. Hor can he escape, this result by contending that the full contract price shall represent the reasonable value of the contract work. It is no evidence whatever of such .value. (Gumb v. Twenty-third St. Ry. Co., 114 N. Y. 411; Kennedy v. McKone, No. 1, 10 App. Div. 88; 41 N. Y. Supp. 782.) He cannot evade a heavy burden of proof by calling his action one thing when it is, in fact, another. Though he sued upon a quantum meruit, his proof was for a recovery under the contract, and, by the course of the trial, this cause of action became practically substituted for the other. Hor was its nature changed' by the concession that the defendant might cut down the amount, so far as she.could, by proof of the value of the uncompleted work. The plaintiff could not thrust this concession upon the defendant, and take in exchange — against her' will — the right to call the contract price of $5,200 the prima facie value of the work' done.

It is true that considerable laxity has arisen in regulating the rights of parties to building contracts. Courts have been. quick, perhaps at times overquicb, to work out from the facts presented a waiver, on the -part of the owner, of rights he would otherwise have had against 'the contractor, by reason of the non-fulfillment of the agreement,, either as to the time of performance or the details of the work. But these cases have not assumed to nullify or disregard precise provisions 'deliberately put into the contract by the parties. ' They were generally based upon the finding of acquiescence as a fact. Ho such fact can here be found. ■ Whatever the respective rights of the defendant and Kierst as to the work which had already been done, it is certain that the former was at liberty to discharge the latter at the time she did To hold otherwise would be to declare the terms of the contract of no importance in a most, material point, and to render it unsafe for any responsible man to enter into a contract for the erection of a building upon, his land. If he did so, it would be with the assurance that, in case he for a. single instant tolerated breaches by the contractor, he would. be deemed to have forever waived ■ them; and that, if he refused to-tolerate them beyond a certain point and determined — when he could bear them no longer — to stand on what "lie might not unnaturally' consider to be his legal rights, he would be liable in damages as one who had committed an tin justifiable breach of his agreement.

As the judgment must, for thé reasons stated, be reversed, it becomes unnecessary to consider the second cause of action, upon the Morgan claim, as to which the evidence and findings, may be entirely different upon a new trial.

The judgment should be reversed, the order of reference vacated,, and a new trial ordered, with costs to the defendant to abide the-event.

Rumsey, Williams, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and order of reference vacated and new trial ordered, with costs to defendant to abide event.  