
    Melvin Smith, Respondent, v. Melvin Russell and Others, as Trustees of School District No. 17, Town of Queensbury, Appellants.
    Third Department,
    May 3, 1911.
    Contract — building contract — plans calling for items not included in original contract — waiver of defects.
    Where the original contract to construct a schoolhouse for a certain sum did not require the contractor to put in a ventilator or buüd a woodshed, and the furnishing of these structures was not within the contemplation of the parties, the contractor may recover the agreed price although the structures were shown upon plans as subsequently prepared, especially so where there is evidence that the school -trustees, upon the contractor’s objecting to the plans, agreed to leave the ventilators out and to pay an added sum for the construction of the woodshed.
    
      ■ Where the school trustees notified the contractor that they were willing to pay as soon as the ventilators were put in, there was a waiver of any other defects in performance.
    Sewell, J., dissented.
    Appeal by the defendants, Melvin; Russell and others, as trustées, etc., from a. judgment of the Supreme Court-in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 29th day of October, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of November, 1916, denying the defendants’ motion for a new trial made upon the minutes.
    
      T. W. McArthur [E. C. Rogers of counsel], for the appellants.
    
      Howard J. Bush, for the respondent.
   Kellogg, J.:

• This case is reported on a former trial in 146 Appellate Division, 162. A judgment by direction of the trial court, dismissing the complaint was reversed upon the ground that there was a question of fact whether or not the plaintiff in good faith substantially performed his contract.

The action is to recover the unpaid contract price for building a schoolhouse. The trustees showed to one Denton a picture of a schoolhouse, stated the size, the quality of the lumber, the windows and doors and their, sizes and the material to be used, and asked him to figure what he would build it for' Nothing was said at the time about a .ventilator or woodshed. Denton turned the picture and the information over • to the plaintiff, and subsequently stated to the trustees the price of $425. Thereafter the trustees presented to the plaintiff a'contract, in the names of Denton and Jacobie, and he swears they requested him to sign their names to it, which he did without reading the paper. No plans or specifications had been completed, although sometime after Denton -had named the price one of the trustees told him the school authorities would require plans and specifications. At the time the contract was signed the woodshed and ventilators had not been discussed, and it was not known to the contracting parties that they were to be referred to in the plans. After the contract was signed for sometime nothing was done by the contractors towards building the building. Denton and one of the trustees came to the plaintiff with the plans, and the trustee said that Denton would not build the building. The plaintiff looked over the plans, which were then presented to him for the first time, and said he would not build it, as it had been changed, and handed the plans back. The plaintiff and others who heard the conversation swear that it was then stated by the trustee that they would leave the ventilators out. Plaintiff immediately began the work and erected the building without ventilators. The evidence shows that while the building was' going on the trustees requested him to take the old lumber which was left, and the metallic roofing from the old schoolhouse which had been burned, and build a woodshed, which he agreed to build for $25. After the house was built the trustees examined it, said it was a good job and they liked it. One of the two trustees who had personal relations with plaintiff in the matter does not substantially disagree with his version; the other does not agree with the plaintiff in some respects, but his denials are weak and his'version of the entire matter is unsatisfactory. He admits that when the building was substantially finished he looked it over with the other trustee and said it was very nice, and the evidence shows that thereafter they made a payment to the plaintiff and agreed to pay the balance in about thirty days. After the time expired plaintiff demanded payment of the balance and the trustees united in a letter to him saying: “We have your money ready for you to pay balance due for building schoolhouse as soon as the building is completed according to contract. The ventilators must be put in.”

The evidence shows that Denton did not contemplate taking the contract for himself, and was not the agent or representative of the plaintiff, and does not explain why the trustees called upon the plaintiff to sign the names of Denton and Jacobie to the contract.

The plans and specifications when finally prepared were not in accordance 'with the proposition which Denton made and the trustees accepted, and Denton or plaintiff, no matter what his relations were to Denton, were not required to build the woodshed or put in ventilators unless after the plans were presented to them after the contract was. executed they approved of them and agreed to build upon them. ' Although it was stated that plans were to be presented, they had the right to expect that the plans would be according to the understanding which up to that time had existed, and the variations from that understanding justified Denton, and the plaintiff in refus- ' ing to build -under- the contract. The specifications. and the contract itself contain no reference to a woodshed; it only is drawn upon the plans, and the evidence is clear that it was agreed between the parties that the woodshed should be built other than according to the plans and for a stated price.

I think the question was a pure question of fact, and the preponderance of evidence was decidedly with the plaintiff. In the. charge to the jury the trial judge referred to the letter above mentioned, saying: “So" the one question is the ventilating system. He could at that time have had his pay in full less the cost of the ventilating system, as he -can now, provided he had in good faith tried to carry out this contract.” The defendants. excepted to the refusal to charge “that there can be no deduction except for the ventilating system ” and asked the court to charge that inasmuch as the plaintiff did not comply with the letter and instal the system he is hot entitled to claim a waiver of other defects, if there were any. The court refused, - to which the defendants excepted. I. see no prejudicial error here. Ho fault had been found with the plaintiff’s work until - this letter was-written, and the court was justified in considering the letter as a waiver of other defects. The jury has found that the plaintiff in good faith entered upon and tried to perform the contract, and substantially did perform it, and have deducted from the contract price an amount which it determines will make the contract good. The judgment is sustained by the evidence and we find no error to the substantial prejudice of the defendants. The judgment, and order are, therefore, affirmed, with'costs.

All concurred, except-Sewell, J., dissenting. ■ ..

Judgment and order affirmed, with costs.  