
    (134 App. Div. 386.)
    EXETER MACH. WORKS v. WONHAM-MAGOR ENGINEERING WORKS.
    (Supreme Court, Appellate Division, First Department.
    November 5, 1909.)
    1. Work and Labor (§ 12*)—Recovery on Quantum Meruit.
    If nothing was due a subcontractor under the terms of his contract, because the work was not accepted by the owners, which the contract made a condition precedent to the payment of the price, because of noncompliance with the principal contract, he could not recover on "a quantum meruit any more than for breach of the contract, as the written contract, when put in evidence, fixed the rights of the parties.
    [Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 27; Dec. Dig. § 12.*]
    2. Contracts (§ 320*)—Performance—Impossibility.
    Where a subcontractor, when he made a contract to construct cable drives for the principal contractor, which provided that 25 per cent, of the price should be withheld until acceptance of the work, knew that the drives must have a certain capacity, he could not recover from the contractor any part of the reserved price on the ground that the size of the engines used, made it practically impossible for the owner to accept the drives under its contract with the contractor; the subcontractor, by reason of his knowledge, being as much at fault as .the principal contractor.
    
      *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
      [Ed. Note.—Por other cases, see Contracts, Cent. Dig. §§ 1493-1527; Dec. Dig. § 320.*]
    *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Appeal from Trial Term, New York County.
    Action by the Exeter Machine 'Works against the Wonham-Magor Engineering Works. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals.
    Reversed, and new trial ordered.
    Argued before PATTERSON, P. J., and INGRAHAM, McLAUGLIN, LAUGHLIN, and SCOTT, JJ.
    Charles P. Howland, for appellant.
    Franklin Nevius, for respondent.
   McLAUGLIN, J.

The only question litigated upon the trial was the first cause of action alleged in the complaint, regarding which there is little or no contest between the parties as to the material facts involved. One Smith, as general' contractor, was constructing for the United States government a coaling station at Bradford, R. I., and he sublet a part of the work, which included the installing of two cable drives, to the defendant, which,; in June, 1902, entered into a written agreement with the plaintiff by which, for $4,730, it agreed to furnish and install the same. The plaintiff installed the drives in November or December, 1903; but after two tests they were rejected by the general contractor and the United States government, and defendant notified plaintiff of that fact. The first cause of action set out in the complaint is to recover $875.02, the balance alleged to be due for such drives. Plaintiff had a verdict for this amount, with interest, plus the amount admitted to be due upon the second Cause of. action; and from the judgment entered thereon, and am order denying a motion for a new trial,' defendant appeals.

The respondent claims that the action is not brought to recover upon the contract, although the making of it is alleged in the complaint, but to recover upon a quantum meruit for the materials furnished and work performed, the value of which is'admitted to be the contract price, $4,730. Under the contract, which was put in evidence, 25 per cent, of the purchase price ($1,182.50) did not become due until the drives had been accepted by the general contractor and the United States government. This amount is more1 than the amount claimed by the plaintiff, and it is alleged as a defense that neither the government nor the contractor has ever accepted the work, which fact was proved upon the trial and in no way controverted by the plaintiff.

Obviously, if there is nothing due under the terms of the contract, the defense is good, whether the form of the action be considered as one for the breach of the contract or upon a quantum meruit. It is contended, however, that acceptance was rendered impossible by acts of the defendant. If this fact had been pleaded and established at the trial, plaintiff would have been entitled to recover, notwithstanding this condition in the contract. But the pleadings presented no such issue, nor did the proof establish it. It is true there was some evidence introduced to the effect that the track and cars installed by the defendant were defective; but it was not shown that the cable drives which furnished the power for moving the cars were rejected on that account. On the contrary, it did appear that they were not accepted because one of them could not do the work required of it, and, since it was desirable to have the two cable drives alike, both were rejected, and subsequently removed from the plant, by the general contractor. Whether this failure was due to imperfections in' the cable drive itself, or whether, as claimed by the respondent, the cable drive conformed to the contract, but was too small to do the work required, it is unnecessary to determine. The plaintiff had agreed that 25 per cent, of the purchase price should not become due until the drives were accepted. It did not appear but that the plaintiff was fully informed of what would be required of the cable drives; on the contrary, it did appear that one Wreaks, who obtained the contract for the plaintiff, knew what would be required, because he admitted that he saw the defendant’s contract with Smith, the general contractor, and he would not deny that he had also seen Smith’s contract with the United States government.

It is not even suggested that the defendant in procuring the contract made any misrepresentations whatever on the subject. The contract itself is quite specific as to the cable drives. It provides:

“Each, cable drive to have a capacity of 40 horse power at a cable speed of 180 feet per minute. Each cable drive to be directly connected to and driven by a double vertical engine, which will be two simple vertical engines mounted on one base plate and coupled to one shaft running at a speed not greater than 180 revolutions per minute, having cranks set at quarters and connected with the cable drives by means of a square jaw clutch, so that the engine may be disconnected, permitting them to be turned over without operating the cable drive. A governor to be provided with each double engine.”

No attempt was made by the plaintiff to show that the cable drives installed by it complied in any respect with the terms of the agreement. This, it seems to me, prevented a recovery by the plaintiff, and especially so when considered in connection with the provision of the agreement which permitted the defendant to retain 25 per cent, of the contract price. It is of no importance whether the action be considered as one to recover damages for the breach of a contract, or on quantum meruit, because, when the written contract was put in evidence, that fixed and determined the rights of the parties. Therefore the complaint, as the case stood at close of the trial, should have been dismissed.

I am also of the opinion the court erred in charging the jury, at plaintiff’s request, that:

“If the defendant, by its act in specifying the 9 by 9 engine, made it impossible for the cable drivers with such engine to ever be accepted by the United States government and by the contractor, he thus by his own acts made the condition as to acceptance impossible of performance, and is es-topped from insisting upon any such condition.”

There was no contract at all until after the 9 by 9 engine had been specified, and if it be true that acceptance by the government and contractor of an engine of that size was practically impossible, then the-plaintiff ought never to have consented to the provision which made the payment of 25 per cent, of the purchase price depend upon such acceptance. It deliberately entered into the contract. It knew what would be required. It was not deceived or misled in any respect, and' if a mistake was made as to the size of the engine, then it was as much its fault as that of the defendant, and this furnishes no reason why plaintiff should be relieved from a contract deliberately made.

The judgment and order appealed from, therefore, are reversed, and a new trial ordered, with costs to appellant to abide event. All concur.  