
    Henry Woelreich, App’lt, v. James Fettretch, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Contract—Substantial performance necessary before party can recover.
    Where a party contracts with another to furnish materials and perform certain work, he must show a substantial performance in good faith of the contract before he can recover If there be slight defects caused by inadvertence or unintentional omission, which are susceptible of remedy without difficulty, so that an allowance out of the contract-price will give the other party full indemnity, he might recover, but not if the defects run through the whole work or are so essential that the object of the parties to have a specified amount of work done in a particular manner, was not accomplished.
    3. Same—Party liable for materials used subsequent to abanuonment OF CONTRACT.
    On abandonment of contract, the relation of vendor and vendee arises as; to materials left on premises by the contractor, which are subsequently used by the defendant.
    Appeal from a judgment on report of a referee dismissing the complaint.
    
      M. Quackenboss, for app’lt/ John Fettretch, for resp’t.
   Brady, J.

The plaintiff who is the appellant, claimed from the defendant $1,289.45, for work done and materials furnished, and sought herein to enforce by sale of the premises, the lien which he filed under the statutes authorizing such a procedure.

On the trial, the real issue was whether he had performed his contract, which was in writing, and the referee on conflicting evidence, determined that he had not. Various incidents having some relation to, and bearing upon the issue, were detailed by the evidence pro .and con, some favoring the plaintiffs cause, and some establishing its invalidity, all of which were duly weighed and considered by the referee and the result pronounced against him.

The condition of the evidence does not warrant our disturbance of the judgment. It cannot be said that the findings made were against the weight of evidence, or that the proof on the part of the plaintiff so preponderated as to call for a different conclusion from that declared. The plaintiff undertook, by his contract, to do the work stated, in the best manner, but failed to do so. He did not complete his contract well or ill, but abandoned it, leaving the defendant to finish it as best he might. What he did do was not a substantial performance as far as it went. The omissions and defects were not slight and occasional, but extended over the entire work.

The abandonment of the contract by the plaintiff he sought to justify by the statement that the defendant had not paid the installments as they became due, excusing himself by financial embarrassment, but the defendant denied this and asserted that his refusal was because of the unskilful and imperfect manner in which the work was done.

It also appeared that when the plaintiff ceased his labors, he left upon the premises material worth the sum of $189.45, to which he called the defendant’s attention, naming the sum mentioned as its value, which the defendant accepted, but the defendant while admitting that there was material left, denied that its value was named, or that he accepted it, and placed its value at fifty dollars.

The record is abundant in these contradictions, and presents a case where the propriety of sustaining the referee’s conclusions is perhaps unusually favorable. '

The plaintiff bears his burden for his failure of a proper performance of the contract without showing which he could not recover. Smith v. Brady, 17 N. Y., 173. The rule established in that case is supposed to have been relaxed in Woodward v. Fuller, 80 N. Y., 312; but assuming that it has, it is only to the extent of declaring that if there be a substantial performance in good faith, although there may be slight defects caused by inadvertence or unintentional omission, which are susceptible of remedy without difficulty, so that an allowance out of the contract price will give the other party full indemnity, the plaintiff might recover, but not if the defects run through the whole work or are so essential, that the object of the parties to have a specified, amount of work done in a particular manner, was not accomplished.

It has been already stated that the defects complained of extended through the whole work, as shown by the defendant and found by the referee, including the materials furnished, and, therefore, the defendant could not recover. When that condition exists, there is neither a substantial performance nor an accomplishment of the object in view when the contract was entered into. In this period of good common understanding, it is absurd to entertain the belief that a mechanic does not know what is the best workmanship, or its close approximate, and therefore when he makes an agreement to perform it, he must discharge his obligation or suffer the penalty, as long as the rule of law now prevailing shall exist. The . referee was right, therefore, in pronouncing the judgment declared as to any • claim under the lien for services rendered or materials furnished, excepting only the materials left on the premises when the work was abandoned, and a part of which the defendant used as headwith. This material seems to be included in the notice of lien filed, and the claim alleged in the complaint. The referee has made no allowance for it, assuming, doubtless, that it was embraced in the part performance made by plaintiff, but this was erroneous.

From the moment the plaintiff abandoned the completion of his contract, á new relation sprung up between him and the defendant, and his status as to the material left on the premises, the defendant having paid nothing, was that of a vendor, if the defendant used it for any purpose on the building. As to it the plaintiff became a furnisher of such material, with the right to become a lienor as well, and was entitled to recover its value. This view is not gainsayed by anything growing out of the contract itself, in substance. The defendant availed himself of a rigorous, rule, to possess and enjoy whatever was done by the plaintiff, for which, as already suggested, he paid nothing.

The contract price was $1,600, and after the plaintiff ceased his work, $722 only was required to finish.

This was much less than the contract price, and no element of damages by the defendant has been sustained by proof. There is, therefore, no apparent counter-claim.

For these reasons there must be a new trial as to the materials mentioned, unless the defendant pays the sum asserted to have been agreed upon, as their price, with interest within thirty days after entry of this order, or the parties agree on a price. No costs to either party art this appeal.

Van Brunt, Ch. J., and Macomber, J., concur.  