
    Matthew Smith, Respondent, v. Andrew O’Donnell et al., Appellants.
    (New York Common Pleas — General Term,
    December, 1895.)
    1. Trial—New issues.
    Where evidence as to an issue not pleaded is offered on the trial a failure to object thereto is to' be deemed an acceptance of the new issue.
    2. Contract—Building — Right of contractor to suspend work.
    Where a contractor has entered upon the erection of a building under an oral contract which is complete except as to times and amounts of payments, which are 'to be settled in a written contract to be subsequently executed, a refusal by the owner to reduce the contract to writing constitutes a breach which justifies the contractor in suspending the work. • u
    
    g. Mechanic’s lien— Co-tenant who does not contract not personally LIABLE BY REASON OF CONSENT.
    .Where a building contract is made with one of two tenants in common, consent by the other tenant to the work.does not render him liable to a personal! judgment. ■
    . Appeal from a judgment of this court in favor of the plan-tiff, directing the foreclosure .of a mechanic’s lien upon premises in Monroe street, in the city of Hew York, and a personal judgment in favor of the- plaintiff, against both defendants, for the sum of $2,339.54, with interest and costs.
    
      Frederick E. Anderson, for appellant.
    
      Jos. A. Burr, for respondents.
   Daly, Ch. J.

The complaint alleged an oral contract between the plaintiff and defendant Andrew O’Donnell, by which the plaintiff was to erect a building for him and furnish the. necessary material and labor therefor for the sum of $33,000, to be paid as the work progressed; that plaintiff furnished labor and materials thereunder of the value of $2,882.87, and that said defendant neglected and refused to perform the agreement on his part, in that he prevented and stopped the plaintiff from continuing and completing, and refused to allow him to complete, and that plaintiff has duly performed said agreement on his part, and is ready and willing to perform, and that the aforesaid sum of $2,882.87 remains unpaid and is due and owing, together with the customary allegations as to the filing, etc., of a mechanic’s lien.

The answer admitted the agreement to erect the building, but alleged that the payment was to be $32,000, for which the defendant "was to give his notes; denied the allegations of work done and the value thereof, and alleged an abandonment by plaintiff of the contract before any payment or note was due.

The referee found that a verbal contract had been entered into between the parties for the erection of the building at an agreed price, payable in installments, the times and amounts of which were to be settled between the parties, and when this was done that the entire contract was to be reduced to writing and signed; that before such payments were agreed upon the plaintiff, at defendant’s request, began the performance of the work of erecting the building; that thereafter the parties agreed verbally as to the amounts and times of payment of the installments, but defendant, though repeatedly requested by plaintiff, refused to reduce the contract to writing; that plaintiff suspended work upon the building, but offered to proceed upon the execution of the writing; that defendant refused, and requested plaintiff to stop the erection of the building and render his bill for the value of the' labor and materials furnished; that plaintiff had then performed labor and furnished materials of the value of $2,339.54, and that he presented a bill therefor to defendant, as directed, but payment was refused. Judgment of foreclosure and sale and- for a personal judgment against both defendants was. rendered.

The evidence fully sustains^the finding of the referee, and the allegation of the complaint that the defendant stopped further work upon'the building, and so prevented the plaintiff from continuing and completing his contract; for, after the express order of the defendant'to stop work upon his promises, the plaintiff could not lawfully go thereon to prosecute' it. The finding, therefore, is according, to th.e allegations of the complaint; but there is a further finding that plaintiff suspended work béfore he was directed to do soj and' defendant insists that this supports his defense of abandonment, and that a new cause of action was introduced by the evidence of a justification for such suspension in the failure of the defendant to execute a written contract, no such agreement and breach being alleged in' the complaint. .

It is clear, however,, from the case that the parties to the action practically disregarded' the pleadings and litigated the new issue raised by the evidence as to the. stipulation for a written contract and the breach of such stipulation. No objection was offered to- the evidence introduced by plaintiff on these points at the outset of the case, and the litigation upon the issue was continued, until the defendant unreservedly. admitted the facts both as to the agreement for a writing and his refusal to make it. The findings of the referee were, therefore, upon issues accepted by the parties and tried before him. There was not only no objection to the evidence but no motion based upon a variance between the complaint and the proofs, so-that plaintiff had no opportunity to ask for an amendment of the complaint. It is to, be observed that evidence -of an agreement for a ’ written contract was not necessarily receive able tinder the pleadings,' and, . therefore, defendant’s failure to object to it must', be deemed .an acceptance of ■ the new_ issue.

. As to the .sufficiency of the justification for plaintiff’s suspending the work, it was the undoubted right of the parties to stipulate for: the preparation and execution of written evidence of their agreement as to the times and amounts of the payments to he made as the work progressed, and a refusal to carry out that stipulation was a breach of a material part of the contract, evidenced bad faith on defendant’s part and afforded reasonable ground for apprehension that payments might not be made as earned, and justified plaintiff suspending work until the contract was observed by defendant. Ordinarily, where there is a stipulation for a writing to be prepared after the terms of the agreement are fixed and settled, there is no contract until the writing is made; but in the present case the contract was, complete exceptas to the times and amounts of payments, -and performance was commenced on plaintiff’s part by direction of defendant, upon the faith of the stipulation to settle the amounts and times of payment by a writing which should put them beyond question. The agreement for the writing became, therefore, one of the terms of the oral agreement, breach of which justified the plaintiff in stopping. Pratt v. Hudson River R. R. Co., 21 N. Y. 305 ; 3 Am. & Eng. Ency. of Law, 854. Plaintiff was not bound to go on and earn the first payment under the oral agreement which defendant had, by his own default, left himself at liberty to dispute. It is contended that the plaintiff was bound to tender a written contract to the defendant for his signature in order to put him in default. But defendant’s refusal to make a writing rendered tender unnecessary, and there was that defendant to

The claim of the plaintiff is for the value of the work done at the time of the suspension and of the stoppage of the work by defendant,, not for any loss of profits. To this he was entitled, and the referee has found such value upon conflicting evidence. Objections are made to-many items of the plaintiff’s original claim, -which,. however, were disallowed by the referee, and the. finding of the sum due is supported by

The exceptions to which attention is called by appellants’ brief do not show error. ' Particular stress is laid upon the ruling sustaining the objection to the question put to the plaintiff on cross-examination as to whether any of the work and materials for which he claims was furnished to him upon any credit other than his own. It was clearly immaterial what other credit- he used to get his labor and material.. The inquiry was .not whether they were obtained exclusvuel/y ton other credit.

At the close of the plaintiff’s case the parties entered into a stipulation as to the exact amount of excavation, stone work and concrete which were done upon the premises. Subsequently defendant asked to .be- relieved from the stipulation of his former attorney ” as “ unwarranted, indiscreet and improper ” and upon the • ground of obvious mistake. The motion was denied and an exception taken. The decision cannot be questioned, for no evidence was offered showing that the stipulation was entered into unadvisedly.

The only valid objection to the decision of the referee is the award of a personal judgment against the defendant Mrs.. O’Donnell. . The complaint alleged a contract with her husband only, and such is the finding of the referee. Her knowledge and Consent to the doing of the work subjected her interest in the premises,- she being a tenant in common with her husband, to the plaintiff’s lien, but did not authorized a personal judgment, as she was in no event personally liable upon the contract made by her husband. The judgment must, therefore, be modified as to her by providing in the fourth paragraph that the defendant Andrew O’Donnell only became and now is indebted to the plaintiff, and in the fifth paragraph that the plaintiff is entitled to recover from the defendant Andrew O’Donnell only, and in the seventh paragraph that the defendant Andrew O’Donnell only pay any deficiency that may be found due, and,, as so modified, will be affirmed with 'costs against the defendant Andrew O’Donnell but without costs against the defendant Eliza O’Donnell.

Bischoff and Pbyob, JJ., concur.

Judgment modified as provided in the opinion, and as so modified affirmed, with costs against Andrew O’Donnell, but without costs against Eliza O’Donnell.' .  