
    Michael Lennon, App’lt, v. Mary T. C. Smith, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 14, 1891.)
    
    Contract—Owner cannot repudiate building contract and also RECOVER DAMAGES FOR DELAY.
    In an action upon a contract for building a cellar, which contained a provision that the penalty of twenty dollars should be enforced for every day that the work remained unfinished beyond a certain date, the referee found that there was a delay of twenty-seven days, and directed a dismissal of the complaint and judgment for $540 damages in favor of defendant. Held, error; that defendant could not repudiate the contract for the purpose of barring plaintiff’s claim for work and make it effectual for damages for a breach of a covenant therein.
    Appeal from j'udgment entered upon order of the general term of the court of common pleas of the city of Mew York, affirming judgment entered on report of a referee.
    The action was brought to recover for the alleged performance of a contract between the parties, whereby the plaintiff agreed to furnish the labor and materials and build and complete a cellar upon the plaintiff’s premises at the price of thirty-five cents per cubic yard for excavation, and sixteen cents per cubic yard for walls, to be paid upon the order of the architect on completion. And this provision : “ A penalty of twenty dollars to be enforced for each and every day that the work remains unfinished beyond the term’’ mentioned, was contained in the contract.
    The referee found that the plaintiff abandoned the work before completion, and that the cellar was not so completed and ready for the framers to proceed until the expiration of twenty-seven days after the |ime specified for completing the work; and as conclusion of law determined that the twenty dollars per day provided for by the contract were liquidated damages; and directed judgment of dismissal of the complaint and for $540 damages in favor of the defendant.
    
      F. T. Wood, for app’lt; Frank F. Smith, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 668.
    
   Bradley, J.

The plaintiff entered upon the performance of the work. And whether or not he substantially performed it depended upon other facts which the referee found against the plaintiff. There were several controverted questions of fact, which it is unnecessary to specifically mention here, since there was evidence to support the facts as found by the referee; and upon them the conclusion was warranted that there was a substantial breach of the contract on the part of the plaintiff available to defeat a recovery by him. Smith v. Brady, 17 N. Y., 173.

But having determined that the defendant was entitled to relief from the obligation of her contract by the breach of it by the plaintiff, and having for that reason wholly relieved her from it accordingly, it is difficult to see how the referee could properly have awarded damages in her favor against the plaintiff for the nonperformance of the contract. She could not repudiate the contract for the purpose of barring the plaintiff’s claim for his work, and at the same time make it effectual for the recovery of damages against him for its breach, although she might, if the facts permitted, recover damages, if any there were, in excess of the price or value of the plaintiff’s work. And the reason is that in such case the contract is permitted to remain operative for the purpose of the remedy and relief of both parties to it, and it is no less essential to support the defendant’s claim for damages than it is to sustain that of the plaintiff founded upon it for his work. It is apparent that a rule having the effect to give one of the parties to a contract the benefit of it to the exclusion of the other in the same action, would or might work great injustice to the latter and quite unreasonably to the profit of the former. Walker v. Millard, 29 N. Y., 375; Woodward v. Fuller, 80 id., 312. In the present case the conclusion was warranted by the evidence that the work performed by the defendant at the contract prices amounted to more than the damages recovered by the defendant. The effect of the recovery directed by the referee was to give the defendant the benefit, such as it was, of all the work performed by the plaintiff and, in addition, the damages awarded to her against him. This was justified by no sound principle of law. The conclusion of law was based upon the fact found that the work which the plaintiff undertook by the contract to do was not substantially performed by him, not that his work was of no value to the defendant.

The view thus taken renders the consideration of any other question unnecessary.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.  