
    William D. Chapin, Resp’t, v. L. Candee & Company, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed November 26, 1895.)
    
    1. Evidence—Contracts—Performance,
    Evidence, in an action to recover for the construction of a well, that the well was useless by reason of an inadequate water supply, is properly excluded, where the contract does not require that it should supply a given number of gallons per minute.
    2. Contracts—Substantial performance. -
    A failure to perform a small requirement of a contract will not bar a recovery, where the cost of such requirement is trifling and is deducted by the jury from the amount due plaintiff.
    Appeal from a judgment in favor of plaintiff.
    
      Chas. Be Hart Brower, for app’lt; Arnoux, Bitch & Woodford, for resp’t.
   Fitzsimons, J.

The plaintiff herein claimed that the original contract made between him and the defendant was, subsequent to the commencement of the work required to be done thereunder, modified and changed, and, as so modified, he completed his part thereof. As to whether or not such modification was made was one of the questions in dispute, and was properly submitted to the jury, and determined against defendant. The evidence was certainly sufficient to justify a verdict in plaintiff’s favor. Therefore, the trial justice was right in refusing to set aside the verdict upon defendant’s motion as against the weight of evidence and contrary to law. Under the contract the plaintiff was not required to build a well that would supply a given number of gallons per minute. Therefore, it was immaterial whether or not the well, when finished, was useful"to defendant or fit for the purpose of its intended use by defendant No such contract was made herein, and the evidence sought to be introdued by defendant tending to show that the well was useless to it was properly excluded.

As to She failure of plaintiff to properly cover over the top of the well, that evidently was an insignificant and unimportant- part of the work, particularly in view of defendant’s claim that the well was entirely unfit for use. That being so, it is evident that it would have properly covered it at a trifling cost. Even plaintiff says that such costs could not have exceeded twenty dollars, which amount the jury allowed defendant in their verdict. It is very evident from defendant's testimony, that it did not attach any importance to the failure of plaintiff to cover the well as the contract required. Its whole and sole objection appears to be that the well fnrnished only 100 gallons per minute. In our opinion, under the facts and circumstances of this case, the objection at present under consideration is technical, and not substantial in merit or law.

We have examined the record carefully, and think that the plaintiff performed his contract. The result was undoubtedly unsatisfactory to defendant, but that fact does not affect plaintiff’s right to recover herein, as he did not contract that the well, as before stated, when completed, would supply any given number of gallons of water.

The judgment must be affirmed, with costs.  