
    Edward P. Finney, Respondent, v. Henry W. Bennett, Appellant.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Building and construction contracts — Performance—Excuses for nonperformance: Eight to recover for defective performance.
    Where plaintiff contracts to renovate the entire stone and brick work on the street facings of defendant’s house, guaranteeing to have a job like new, his failure to remove stains due to the permeation of magnesium through the brick which he knew were not infrequent and could not be removed with the cleaning preparations commonly used for that purpose, is a defense to an action to recover the contract price; and the admission of evidence to establish the impossibility of removing such stains which plaintiff had reason to anticipate and which was unknown to defendant is error.
    The word “renovate” in such a contract means to restore the ordinary appearance of new brick work and not its unusual defects.
    Where in such action the complaint alleges that plaintiff had performed work of the reasonable value and at the agreed price of $450, of which $300 had been paid, but the proportionate part of the contract price represented by the renovation of the brick work and the value of all the work done, exclusive of such renovation, are not shown, it must be presumed, on appeal from a judgment of $150 in plaintiff’s favor, that the trial court proceeded upon the contract count and not upon the quantum, meruit count and a new trial will be ordered without determining what would have been plaintiff’s rights had he presented the necessary proof to establish a quantum meruit count for the work actually done.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of ¡New York, tenth district, borough of Manhattan.
    Wallach & Cook, for appellant.
    George L. Donnellan, for respondent
   Blanchard, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action brought to recover a balance of $150 alleged to be due for work rendered to the defendant pursuant to the following accepted offer:

June 24, 1904.

W. S. Denison Esq.:

Dear Sib: We propose to entirely renovate the entire stone and brick work on avenue and street facings of 621 West End Avenue, guaranteeing to have a job like new, and water-tight, by repointing all the open joints and refilling all the cracked stone. The scaled blue stone work about steps and stoop and area wall we propose to cut and rub smooth. For the net sum of Four Hundred and Eighty ($480) Dollars.

Very truly yours,

“ O. H. Finney & Sons.”

The conlplaint alleged that the plaintiff had performed work “ of the reasonable value and at the agreed price of Four Hundred and Fifty ($450) Dollars,” and that only $300 thereof had been paid.

The evidence shows that the brick work bore conspicuous and disfiguring stains, due to the permeation of magnesium through the brick, and that these stains were not removed by the plaintiff, although he had applied the acid solutions and other cleaning preparations commoidy used for that purpose.

The proportionate part of the contract price which is represented by the renovation of the brick work, and the value of all the work done, exclusive of the renovation of the brick work, are not shown in the evidence.

Both parties, by their language and their admissions, agree that the phrase “ renovate the entire * * * brick work * * * guaranteeing to have a job like new,” includes a removal of the brick stains, wherever this can be done with the aid of the cleaning preparations commonly used for that purpose. The plaintiff contends that no otliqr meaning is intended. He urges that magnesium stains are a frequent, inherent and irradicable defect in bricks. He further contends that new houses frequently show such stains, even before finished; and that the letter of the contract, which calls for the renovation of the brick work, has, therefore, been satisfied. This latter point seems sufficiently refuted, by the plaintiff’s own conduct in trying to remove the stains in the present case, and by the obvious intention of the word “ renovate,” which means to restore the ordinary appearance of new brick work and not the unusual defects of new brick work.

The defendant, on the other hand, contends that the absolute removal of the brick stains was contracted for, and that failure of performance in this regard is a sufficient defense to the present action.

The evidence shows that the plaintiff knew that similar brick stains, which cannot be cleaned with the cleaning preparations used in the trade, are not infrequent. There is no evidence that the defendant knew this, or contracted with that in view. The cleaning of the brick work must be presumed to be an essential part of the contract. If it be impossible to remove such stains, it is an impossibility which the plaintiff had reason to anticipate and which was unknown to the defendant. The plaintiff, therefore, cannot urge this impossibility as an excuse for not cleaning the brick work pursuant to the contract. In permitting him to introduce evidence attempting to establish this excuse, in his action to recover upon the terms of the contract, the trial court committed error. Elting v. Dayton, 43 N. Y. St. Repr. 363, affd., 144 N. Y. 644.

Upon the proofs, it must be presumed that the trial court, in awarding judgment for $150, proceeded upon the contract count, and not upon the quantum, meruit count. Without determining what would have been the rights of the plaintiff, had he presented the necessary proofs to establish a quantum meruit count for the work actually done, judgment is hereby reversed, and a new trial ordered, with costs to the appellant to abide the event.

Scott and Dowling, JJ., concur.

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