
    CUNNINGHAM a. JONES.
    New York Common Pleas;
    
      General Term, April, 1857.
    Mechanics’ Lien.—Contract.—Material Men.
    A contract with an owner for the erection of a building, stipulating no time of payment, nor any sum, excepting that the labor was to be done by days’ work, is an entire contract, and not divisible as to the time of payment.
    The contractor having abandoned the work and absconded, leaving the building not inclosed, he was entitled to no payment, and a laborer or material man had no claim against the owner.
    
      Appeal from a judgment foreclosing a mechanic’s lien.
   F. Ingraham, J.

—The plaintiff seeks to recover from the defendant, under the mechanics’ lien law, for work done by him for the contractor with the owner.

The referee has found that the defendant (the owner) made a contract with George W. Burwick to erect on his land an addition to his brewery; that there was no stipulation in respect to the sum or price to be paid, except that, the labor was to be days’ work; that the plaintiff did furnish the materials as claimed by him ; and that before the building was completed, Burwick absconded and discontinued the work.

From the evidence it appears that the work was abandoned before the building was inclosed.

The right of the plaintiff to recover depends upon the question whether the contractor had a claim" which he could have enforced against the owner at any time before he absconded. If there was nothing then due from the owner, there is no fund out of which the claim can be collected from the defendant.

If there was any contract in the case (as to which I express no opinion, the referee having found that there was one), it was an entire contract and not divisible as to the time of payment. The agreement was to erect an addition to a building, without any specification as to the time of payment. The law in such case requires the whole work to be done before the contractor can call for his payment. A mere voluntary payment on account does not alter the rights of the parties.

Performance of the entire contract was a condition precedent to payment; and the plaintiff was bound to show such performance before the defendant became liable to the contractor. (McMillan v. Vanderlip, 12 Johns., 165 ; Jennings v. Camp, 13 Ib., 94 ; Faxson v. Mansfield, 2 Mass. R., 147; Champlain v. Rowley, 18 Wend., 187.)

There are cases where a substantial compliance has been held sufficient to take the case out of the rule; but I know of no case where that has been extended to cases of contracts left half finished, and exposing the contracting party to great injury from such abandonment. In the language of Judge Spencer, “ it was never intended to embrace the case of a wilful dereliction of the contract when partly executed by one of the parties without the assent and against the will of the other.”

In White v. Hewitt (1 E. D. Smith, 395), this question distinctly arose, and the court say it is not law that a party contracting to perform a specific job, may prosecute it so far as he thinks proper, and then abandon it unfinished, without the fault or assent of the party with whom he contracts, and then sue and recover for so much labor as he has chosen to devote to the undertaking. (See also Neville v. Frost, 2 E. D. Smith, 62.)

The omission to state the compensation in the contract does not alter the rule. The defendant would be bound to pay what the work and materials were worth, but he had a right to insist that the contract should be first completed. If the contractor wanted any other terms of payment, he should have stipulated for it in his contract.

The judgment must be reversed.  