
    Alonzo E. Smith, Respondent, v. Stuart W. Cowan, Appellant
    
      Entire contracts — non-perfonnance thereof—recovery of the amount paid thereon, not the measure of dmnages — abstract propositions for which the proof affords no application — when an erroneous refusal to instruct the jury is not prejudicial.
    
    Where an action is brought to recover under an entire contract on which payments have been made, and the defendant alleges, in his answer, that the plaintiff has failed to perform the contract, the defendant, if such defense. is sus: tained, is not entitled to have the court charge as matter of law that he had a right to recover what he has paid the plaintiff upon the contract.
    The payments made by the defendant on the contract are not the measure of his damages arising out of its non-performance.
    While a proposition of law relative to the measure of damages may be correct in. : the abstract,, a refusal to charge it is not erroneous where the party, requesting the charge, has given no evidence which will serve as a basis fo.r the application of the rule.
    Where the court has refused to instruct the jury that unless tile plaintiff had substantially performed the contract the defendant was entitled to recover the damage resulting from its non-performance, and the jury finds for the plaintiff, the error in refusing to so instruct the jury, is immaterial.
    Appeal by the defendant, Stuart W. Cowan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of October, 1895, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 18th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      IYalter. R. Beach, for the appellant.
    
      Herbert Oreen, for the respondent. ■
   Cullen, J.:

This action is to recover for dredging and excavation done by the plaintiff for the defendant. The dredging was done in the excavation of a canal and basin on defendant’s meadow. The employment of the plaintiff and the amount of work done by him are not in dispute. Both parties assert that there was an oral contract between them for the excavation of the whole canal and basin. They agree on the price to be paid, which was twelve and a half cents a yard. The vital dispute between them is as to the depth to which the canal and basin were to be excavated, the plaintiff insisting that he was to excavate only to where hard bottom was found, and the. defendant contending that the plaintiff was to excavate to a uniform depth of' nine feet, regardless of the character of the material to be excavated. During the progress of the work the defendant made certain payments or advances to the plaintiff on account of the work. This action is to recover the balance due.

On the trial it was conceded that the plaintiff’s agreement was an entire one ; that is, to do all the excavation requisite for the canal and the basin. The question, therefore, litigated was what were the terms of the contract between the parties, and whether the plaintiff had substantially performed it. The cause was submitted to the. jury, under a charge by the- court, that the plaintiff must satisfy. them that he had substantially performed his contract and, if he failed so to do, he was entitled to recover nothing for the work done by him. The defendant makes no complaint of the manner in which the issue was submitted to the jury. His principal point urged on this appeal is that the verdict of the jury, on these issues, was against-the weight of evidence. As to this we can only say that a careful review of all the testimony ■ satisfies us that there was a fair conflict of fact between the parties, the evidence to support which, on neither side, was so overwhelming as to justify the court in setting aside the determination the jury might make of .the question.

The exceptions taken by the defendant to the rulings of the court, admitting or excluding evidence, are without merit and require no discussion. There were, however, two requests to charge, which the court refused. These rulings require examination.

The court was asked to charge that if the plaintiff had failed to substantially perform his contract, the defendant was entitled to recover all amounts lie had paid the plaintiff on account of the contract. - "We can find no authority for this .proposition and believe it to be essentially unsound. If a party fails to perform a contract, the other party is entitled to recover damages for its breach. The ordinary rule of damages, in a case of a breach of a contract, is the expense or cost of performance, with, of course, in certain cases, the damages occasioned by delay, or other special damage. But where one party has paid in advance either the whole or ¡Dart of the consideration on his part, liis right to recover back such payments, on default by the other party in the performance of the contract, does not proceed on the ground that such payment is the measure of damages for the breach, but on the theory of a rescission of the con-tract by the party not in default or because the consideration for the payments has failed. Generally, no contract- can be rescinded by" one of the parties-unless both can be restored to the condition in which-they were before the contract was made. If, therefore, one of the parties has derived an advantage from a partial performance he cannot hold this and consider the contract as rescinded because of-the non-performance.of the residue; but must * * * seek his remedy in damages.” (2 Pars, on "Gout. [5th ed.] 619.) -So also, if the party not in default proceeds on the theory that the consideration for his payments has failed, he may doubtless maintain Iris action, but he is not entitled to recover except to the extent that the consideration has failed. Nowhere has the law been held more strictly, that a party must substantially and completely perform his contract or recover nothing, than in this State. (Smith v. Brady, 17 N. Y. 173 ; Champlin v. Rowley, 13 Wend. 258.) In the latter case, which is frequently referred to as a decisive declaration of this doctrine, the plaintiff had made an agreement to sell and deliver 100 tons of hay, at a specified price, $100 in advance, the remainder when the delivery was completed. He delivered 52 tons and failed to deliver the remainder. It was held that he could not recover. It is said by Nelson, J,: “ Unless we are at liberty to make a contract for these parties, it is perfectly cleai-, that beyond the $100, which was to be paid in advance, the defendant is not bound to make any payment towards the hay, until the whole quantity * -x- * has been actually received by him,” a clear admission of the rig-lit to retain the $100 paid. In the present case, in case of failure on the part of the plaintiff to perform his contract, the defendant had doubtless the right to recoup, either by way of set-off or counterclaim, the expense or cost of completing the contract over the contract price, together with any loss or injury for the delay. But to entitle him to recover back his payments, either in whole or in part, he was bound to show that the work done was of no value to him or of less value than the amount paid. ' The evidence shows the fact to be the exact reverse. It is not pretended that all the work done by the plaintiff was not necessary- and proper, but the claim is that he should have done more. We are5 therefore, of opinion that the rule which the court was thus asked to .charge, without qualification or condition, was properly refused.

. The seventh request was: “ That if the jury shall find from the evidence that plaintiff did not fairly and substantially perform the contract in all its parts, defendant is further entitled to recover from plaintiff such damages as the jury shall find from the evidence have been sustained by defendant by reason of such non-performance by plaintiff.” As an abstract proposition of law this request was undoubtedly correct, and the refusal to charge it would have been error, if there was any evidence in the case from which the jury could have ascertained defendant’s damages. We -have looked through the case in vain for such evidence. The agreement was to pay for the excavation a. specified price per yard. The plaintiff stopped work when he reached hard bottom, claiming that such was his contract. The defendant claimed that plaintiff should have excavated to a depth of nine feet, regardless of the material to be excavated. If the defendant was right as to the terms of the contract, he was undoubtedly entitled to recover, as damages for its breach, the difference between what the excavation of the hard-bottom would cost and what the plaintiff .had agreed to do it for, but there is no evidence in the case of what the cost of such work would be. The only approach to it is the testimony of the defendant, that subsequently to the plaintiff leaving the work he (defendant), had the basin and channel deepened at a cost of $1,600. There is" no. evidence to show whether this deepening was requisite to carry the excavation to the prescribed deptñ of nine feet, nor how many yards of material were excavated, nor the price paid per yard. For aught that' appears, it may be the work was done at a less cost than that prescribed by the contract. There was, therefore, nothing in the case on which the jury could give the defendant an affirmative judgment for damages.

There is a further answer to the defendant’s claim of alleged error in. respect to these refusals to charge. The case was submitted to the jury under the instruction that unless the plaintiff had substantially performed his contract he-could recover nothing. As the jury rendered a verdict for the plaintiff, it was necessarily determined that the plaintiff had performed his contract and, therefore, any instructions or refusals to instruct, in case the jury found that the plaintiff had not performed his contract, became immaterial.

The judgment and order denying motion for anew trial appealed from should be affirmed, with costs.

All concurred, except Pratt, J.,. dissenting.

Judgment and order affirmed, with costs.  