
    The Richardson & Morgan Co., Respondent, v. Rudolph H. E. Gudewill, Appellant.
    Appeal from a judgment for the plaintiff entered upon a verdict directed by the court.
    William A. Sweetser (J. S. L’Amoreaux, of counsel), for appellant.
    Hitchings, Palliser & Moen, for respondent.
   Schuchman, J.

The complaint sets forth a cause of action on a promissory note made by defendant to the order of plaintiff, dated October 20, 1898, for $244, payable on January 1, 1899, for value.

The answer in its second separate defense sets -forth that the note was given pursuant to a contract between plaintiff and defendant; that plaintiff failed to perform its part of the contract, and that, therefore, the consideration of the note failed. Tho contract, which is made part of this separate defense, is annexed to the answer and consists of a proposition by plaintiff and an acceptance by defendant as follows (only the material part being here stated):

“ Dr. R. H. Gudewill:
“ Dear Sir.— For and in consideration of the sum of $394, payable as arranged, we will furnish and set in your house one No. 267 Richardson’s Cyclone Portable Steam Boiler, with guaranteed heating capacity of 800 square feet of radiation, with all necessary valves and connections. Radiators will be connected with a boiler by pipes of ample size to insure perfect circulation and entire freedom from water hammering, and to thoroughly warm all radiators. All work and material shall be first-class in every respect, and the apparatus to be of sufficient capacity to heat the room connected with the radiators.
Respectfully submitted,
The Richardson & Morgan Co.,
“ J. J. Richardson, President.”
“ New York, September 6, 1898.
“ I hereby accept your proposal of June 8th for furnishing and setting in my house one No. 267 Cyclone Boiler with all fixtures, etc., as specified, complete as specified, in your proposition of June 8th, and for which I agree to pay you the sum of $394. The terms of payment to be $150 when goods are delivered and set. Balance in note due January 1st, on which $44 is to be paid and one renewal allowed for balance.”

The answer, in paragraphs 10 and 11 avers, after setting up what plaintiff contracted to do, that plaintiff failed on its part to perform any and every part of its contract except the setting of a steam boiler, steam pipes and radiators. It avers that the connections of the radiators with the boiler were not by pipes of ample size, and that all the work and material was not first-class, as plaintiff had agreed to furnish. On the trial the only witness called was one Williamson, an employee of the plaintiff, who testified that he received the note in suit from the defendant; whereupon plaintiff’s attorney moved for the direction of a verdict in plaintiff’s favor, claiming that the separate defense set up in the answer presented no defense. The trial judge so held. This we claim is error. The note was given in pursuance of the contract for the exact sum therein stipulated, and, if plaintiff failed to perform its part of the contract, it goes to the failure of the consideration of the note.

The second separate defense set up in the answer is • well pleaded; it sets forth the contract, the breach thereof and that the note was given in pursuance of the contract. The appellant seeks to invoke a rule, that the giving of the note after the completion of the contract was an acceptance of the work and a waiver of any defense to such note when due, and cites Walker v. Millard, 29 N. Y. 375. Where is the proof of the completion of the contract, or of the time of the completion ? There is none in the case. Nor is there any in regard to the acceptance of the work by defendant, nor of the value of the work done up to the time of the giving of the note. In Walker v. Millard, supra, plaintiff agreed to do certain work in repairing two houses for $600 when the job was completed. The plaintiff proceeded with the work, and before it was completed, the defendant paid him $100 on account and, when the job was nearly completed, the defendant gave him a note of $400. It was held that “ The making and delivery of the note by the defendant, for work done under the contract, to a greater amount than the face of such note, and its acceptance by Walker, the other party to the contract, operated in law as a change or modification of such contract, in respect to the payment, to the extent of the amount of the note. There being no fraud, or mistake of facts, the party giving the note is precluded from setting up the contract to defeat a recovery upon it.” A party may waive a right founded on the entirety of a contract and substitute a different promise, in whole or in part, which will be completely obligatory if accepted by the other side. But in the case at bar no different promise is substituted for the one contained in the contract. Nothing is waived, and the note is given for the identical promise contained in the contract and in pursuance of the'Contract.

Judgment reversed and new trial granted, with costs and disbursements to the appellant to abide the event.

Eitzsimons, Ch. J., and O’Dwyer, J., concur.

Judgment reversed and new trial ordered, with costs to appel- , lant to abide event.  