
    Desmond-Dunne Company, Respondent, v. Friedman-Doscher Company, Appellant.
    
      Contract — allegation of nonperformance, only proved partially.
    
    In an action.brought upon promissory notes of which the consideration is an agreement of the payee to place advertising signs of the maker in the stations, cars and terminal of an elevated railroad company for a term of six months, the maker, who has not set up a partial defense by way of damages for a failure to perform the contract fully, but who has merely denied that the payee has complied with the terms of the contract, cannot resist a recovery by showing that SO out of some 1,400 signs have not been placed as agreed at a bridge terminal, when it appears that, at 1he date in question, alterations were being made at the terminal, and that the signs were placed there as soon as the terminal was completed.
    Where the evidence in such an action justifies the jury in finding that the contract has been substantially performed, the defendant is not, entitled to a charge to the jury that strict compliance with the agreement is necessary to á recovery by the plaintiff, but may allege, prove and have allowed him such damages as resulted from the default of the plaintiff to fully complete it.
    Appeal by the defendant, the Friedman-Doscher Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Joseph 0. Rosenbaum, for the appellant.
    
      Jesse Johnson, for the respondent.
   Bradley, J.:

This action represents the consolidation of three actions commenced in May, June and July, 1896, upon promissory notes of the defendant, of date October 1, 1895, for $333.33 each, payable to the order of the plaintiff in seven, eight and nine months, respectively. The consideration of the notes was the agreement of the plaintiff to place the defendant’s soap signs, of the character specified, on the stations and in the cars of the Kings County Elevated railroad, in the manner and as also specified in the agreement, for the term of six months, from October 1, 1895. The notes,were ' delivered to the plaintiff on November T, 1895-, when a further agreement was made to the effect that the printed signs at the bridge terminal were to be and remain in position for six months from the completion of that station ; that the signs were to occupy canopies on main platform, one sign at the foot and one at the head of main stairway, and that all advertising was to date from October 15,1895, and-to run eight months. The number of signs requisite to the performance of the agreement was 1,400 or 1,500. It is conceded by the evidence on the part of the defendant that at the time the notes were delivered everything required of the plaintiff by the agreement had been performed* with the exception of twenty signs, and they were the ones referred to in the further agreement of November, to be placed at the bridge terminal of the railroad. The evidence on the part of the plaintiff gives as the reason why those twenty signs were not put up prior to October 1, 1895, that alterations were being made in the terminal there, and, further, that those twenty signs were up in the Brighton Beach part of the bridge terminal prior to the time of the delivery of the notes, and that it was agreed that when the station was completed there the signs were to be divided between the two platforms at the terminal, with a view to which the agreement of November seventh was made, and that this was done by the plaintiff in January following.

Notwithstanding the fact that the notes, by their .terms, had become due before the action was commenced, it is urged the no right of, action on them could arise until the expiration of six months after the signs were put up at the bridge terminal, and the court was requested and declined to charge the jury that unless such time had elapsed after that was done before the action was commenced the defendant was entitled to a verdict. No such condition is expressed in the written .contract, and the evidence on' the part of the plaintiff is, that there was no such arrangement. If it be assumed that the station referred to in the agreement of November J, 1895, was the permanent station there, and that it was not completed until in January following, that did not necessarily defeat the right of action upon the notes at their maturity, nor did it necessarily constitute a defense.' The defendant does not rely upon a partial defense by way of damages for failure to fully perform tlie-contract, but by the answ’er alleges that the plaintiff has not complied with the terms of the contract, in that it had not planed the number of signs agreed upon between the parties as part consideration for the notes, and had not placed them in' the localities agreed upon by the parties; nor did the defendant seek to prove any damages for any alleged failure to fully' perform the contract.

Unless, therefore, at the trial, a question was available and raised by exception which went to defeat entirely a recovery by the plaintiff, there was no error in the result. The court was requested to charge the jury that a strict compliance with the agreement was necessary to enable the plaintiff to recover. This the court declined to do, but charged the jury that a substantial performance of the contract would enable the plaintiff to recover, and submitted that question to the jury. The exceptions to such refusal to charge and to the charge as so made were not well taken, as the evidence was such as to permit the jury to find that the contract had been substantially performed by the plaintiff. In that event, if the plaintiff had failed fully to complete the performance of the contract according to its terms, the defendant was entitled to allege, prove and have allowed such damages as resulted from such-default. (Phillip v. Gallant, 62 N. Y. 256; Flaherty v. Miner, 123 id. 382.)

There was no error in the rulings of the court.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  