
    Turner v. Haight and another.
    
      3 jdgment upon the report of a referee cannot be reviewed in the Court of Appeals without a case being made, though the facts necessary to present the legal question intended to be raised appear upon the face of his report.
    A recovery on a contract for work and materials is not barred by the party performing it having done more work or furnished more materials than the contract prescribed, unless it appear that the excess is detrimental to the object for which the work was designed, or renders it essentially a different thing from that contemplated.
    Appeal from the Supreme- Court. Action to recover for work and materials in constructing two piers and two abutments for a bridge across the Mohawk river, in Montgomery county, pursuant to a written contract between the defendants the employers, and the plaintiff and one Eigenbroat (who had assigned to the plaintiff), the contractors for the work. The defendants were to pay three dollars and fifty cents for each cubic yard the works should measure when completed. The dimensions of the piers and abutments were to be thereafter determined by the directors of the St. Johnsville and Minden Bridge Company. Specifications were annexed to the contract, but they did not state the size of the erections. The complaint alleged full performance by the plaintiff after the assignment to him. The answer, among other defences, set up that the directors of the bridge company had directed that the piers and abutments should be eight feet wide at the base and five feet at the top, and that the plaintiff' built them six feet wide at the top. It was added “ that the said defendants protested to said plaintiff against making said pier and abutments of a greater size than was directed, and notified said plaintiff that they, said defendants, would not pay said plaintiff for a greater number of cubic yards than would he contained in said piers and abutments huili of the size and dimensions directed as aforesaidand that the defendants had, before the commencement of the suit, paid what would be due the plaintiff, estimating the work to be of the dimensions directed. Another part of the answer set up this variation, along with other alleged departures from the contract, as a bar to the action. The reply denied the new matter in the answer.
    The case was tried before a referee. He found, in general language, that the plaintiff had performed the contract according to its terms, and “that the quantity of masonry in the abutments and piers, as built by said plaintiff (after deducting 29-^t yards for extra thickness of the piers exceeding the plan which the directors of said bridge company had directed), is 1182-i&0io' yards, which, at $3.50 per yard, amounted to- $4139.23.” He found that the defendants had paid this sum, except a balance of $323.82, for which he made a report in favor of the plaintiff. The defendants filed exceptions, claiming that the facts showed that the plaintiff had failed to perform the contract, and was not entitled to recover. The. general term affirmed the judgment. Ho case has been made, the papers being only the pleadings, referee’s report and exceptions. The defendants appealed.,
    
      Thomas B. Mitchell, for the appellant.
    
      Nicholas Hill, for the respondent.
   Denio, Ch. J.

If this case is in a situation to be reviewed, the following considerations require an affirmance of the judgment. In the execution of a contract it is not every circumstantial variation from its terms which will deprive the contractor of the equivalent which he was to receive. For instance, if a particular amount or quantity is not of the essence of the contract, an excessive amount or quantity would not vitiate the performance: as, if one should agree to deliver one hundred bushels of wheat and should deliver one hundred and five bushels, it would be absurd to say that he could not recover for the quantity mentioned in. the contract. So, if one should contract to construct a stone wall five feet high, • intended to inclose, a field and for that object alone, and should build it of the height of six feet, the excessive height ought not to prevent the recovering the contract price. If, however, an excess in the amount or dimensions of the article to be furnished would render it essentially a different thing, or if the court could see, or it should it be shown, that it would not as well answer the puipose which the party contracting for it had in view, the contract could not be considered as performed if the amount or dimensions were exceeded.

In this case it is necessarily inferable, from the part of the report contained in the parentheses, that more masonry was employed in constructing these piers than the defendants contracted for. It is not shown that they were on that account less perfectly suited to the purpose for which they were designed. They may, indeed, for aught that appears, have been better adapted to their purpose on that account. It is to be intended, from the allegations in the answer, that they were not less suitable on account of then: greater size. The defendants say they complained, while the wall was in progress, that the piers were being made too large at the top, and declared that they would not pay for the excess beyond the dimensions in the contract. It is clear from this that the only objection to the excessive size was the increased cost. Hence, if the defendants are not charged with the additional cost they have no reason to complain. The referee deducted so much of the masonry as exceeded that for which the defendants contracted, and gave a report for the residue. Upon the principles which have been stated we think this was right. The defendants did not show, as they might have done if the fact were so, that the increased thickness of the pier would impede the flow of water, or that in any respect they were less perfectly adapted to their end than they would have been if the additional masonry had not been put on.

The judgment should be affirmed.

Shankland, J.

The defence is founded on the ground that, by the specifications of the agreement, the piers were to be of a certain thickness, and that plaintiff constructed them thicker than the specifications required; and the defendant relies on the portions of the report contained within parentheses to prove the fact. I am of opinion that the report having expressly found the contract fully performed by the plaintiff, it cannot be contradicted by mere inference to the contrary, to be gathered from statements of facts in computing the damages or amount due to the plaintiff. The referee does not allow the plaintiff for the thickness of piers exceeding the specification; and the extra amount of work is stated with the view of excluding it from the computation.

But if the fact appears in the report in such form as to prove the piers to have exceeded in thickness that prescribed in the specification, still it does not appear that such variation in overdoing the job was the least damage to the defendants. It may well be that the extra thickness was detrimental to the work; but I think we cannot presume it to have been so, in the absence of evidence. In this respect the case differs from those where the work falls short of that prescribed in the contract. There, damage may well be presumed as the necessary consequence of non-performance. But it may as well be said that a plaintiff who hires for a month, and overworks his time a day or two, cannot recover for the month, as that this plaintiff cannot recover because he constructed these piers an inch or two thicker than the contract directed. I am of opinion the judgment should be -.affirmed.

All the judges agreeing that the judgment was not reviewable,

Judgment affirmed.  