
    Samuel A. Fisher, Respondent, v. L. Adelaide Rendell Goodrich, Appellant.
    
      Á single and entire contract for the erection of a windmill—what must he shown to sustain an action for the contract price — right to substitute a new tower for one which hasproved to he defective.
    
    In an action to recover the contract price of a windmill and appurtenances which the plaintiff, alleged that he had erected upon the premises of the defendant, complete and in good working order, it appeared that the plaintiff submitted to the defendant a proposition to “furnish all material and labour to compleat the windmill as we decided on,” stating in detail the specifications of the work and concluding “I will guarantee work and all material to be first-class, and will compleat the job as we talked it over for 337 60-100; ” that at the same time and as a part of the offer, the plaintiff gave the defendant an itemized bill or statement of the amounts to be paid by her for the various parts of the windmill, amounting in the aggregate, including an item of $33.50 for labor in erecting the mill, to the sum of $337.60; that, when the mill was completed, it was found that the tower was not strong enough to support the tank, and the defendant refused to accept the mill, and that the plaintiff then commenced to take it down for the purpose of removing it and on the following day was . notified by the defendant to remove the mill and consider the' contract terminated.
    
      Held, that the contract was a single and entire contract for the sale and delivery of a, windmill, and not to furnish material and perform labor upon it for the defendant;
    .That, in order to be entitled to recover any part of the contract price, the plaintiff was obliged to allege and prove the substantial completion of the windmill according to the terms of the contract;
    That the defect in the performance of the contract being of a material character, the defendant had the right to terminate the contract and to require the plaintiff to remove the mill without regard to the intention of the plaintiff to remedy the defect;
    
      That it was, therefore, error for the court to charge that, if the plaintiff offered to substitute a new tower, in the place of the one which had proved to be insufficient, and was unreasonably prevented from doing so, he was entitled to recover.
    
      Semble, that it would be otherwise had the defendant assented to the substitution of a new tower and thereafter prevented its erection.
    Appeal by the defendant, L. Adelaide Rendell Goodrich, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 13th day of March, 1900, upon the verdict of a jury, and also from an order bearing date the 7th day of March, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Timothy M. Qriffing, for the appellant.
    
      Joseph Wood, for the respondent.
   Sewell, J.:

On June 16, 1898, the plaintiff made the following proposition in writing to the defendant :

“ Sayville, June 16, ’98.
“ I will furnish all material and labour to compleat the wind mill as we decided on
tower 60 ft high 10 ft wheal 1000 gal Sypres tank elevated in tower bottom of tank 27 ft from ground do all digging and fill up the ditch and brick up pump pit
pump 3 in brass lined force púmp laying in garden to House 11/4 galv pipe with three Hydrents the One in front yard a cast iron Hydrent laying 3/4 galv pipe in garden north of mill and in front yard with Hydrent in garden at the north and 1 facett in tower I will guarantee work and all material to be first class and will compleat the job as we talked it over for 327T6¡¡% I will do the job at once or as quick as I can get the material on the ground
yours Respt
“S. A. FISHER.”

At the same time and as a part of said offer the plaintiff gave to the defendant an itemized bill or statement of the amounts to be paid by her for the wheel, tower, tank, pump, pipe, valves and other parts of said mill, amounting in the aggregate, including-$33.50 for labor in assembling the parts and erecting the mill,, to-the sum of $327.60.

The defendant accepted the proposition, and the plaintiff testified that he ordered the mill or material on June twentieth, commenced the erection of the mill on July twelfth and completed it the twenty-third. It appears that the clerk or manufacturer who shipped the mill to the -plaintiff made a mistake and sent a tower not sufficiently strong to support the tank; that the defendant-refused to accept the mill; that August twenty-third plaintiff commenced taking it down for the purpose of removing it, and on the day following the defendant served on the plaintiff the following-notice :

“ Mr. S. A. Fisher :
“ Dear Sir.— I wish you to remove everything you have put on the place and consider the contract broken and ended.
“ Respect.
“ L. A. REHDELL GOODRICH.”

The plaintiff in his complaint alleges that he furnished the pump,; tank, tower and - other material, and erected the windmill upon the-premises of the defendant, complete and in working order, and that, defendant has refused- to pay for the same.

The contract is single and entire. It is for the sale and delivery of a windmill, and if it had been performed the plaintiff would be-entitled to recover the full sum of $327.60. He was not to furnish, material and perform labor upon it for the defendant, but from his. own material and by his own labor he was to furnish and affix the-windmill to the defendant’s premises. As was said in Butler v. Butler (77 N. Y. 475), the defendant was to have, not these articles, as separate parts or members from which, by the. application of skill and labor a machine could be constructed, but a complete thing, placed upon his own premises, of the required capacity and ready for use.” It is not pretended that this has been done. The plaintiff testified that the parts “ were not adapted to the purpose for which they were intended. * * * I saw that if it was used, as it was intended to be used after it was put up, that it was not; safe. And I saw that it would-be necessary for it to come down.”1 The evidence in this case does not permit an inference that the defendant accepted the mill. She was entitled to a reasonable time for examination, long enough to put the machinery in motion and see it operate (Brown v. Foster, 108 N. Y. 387), and that she did immediately thereafter reject it as not in accordance with the contract appears by the written notice served upon the plaintiff and his taking it down. The plaintiff was bound to deliver and could perform the contract only by delivering the mill as specified in the contract, “ work and all material to be first class ” all complete and ready for use. The contract imposed upon the defendant no obligation to pay any part of the contract price until the mill was substantially completed according to its terms. That was a condition precedent which the plaintiff was bound not only to aver but to prove, and as that was not done and the contract price was not divisible, the plaintiff was not entitled to recover any part of it.

It is well settled in this State that under an entire contract there is no right of action, and can be no recovery until the whole quantity contracted for is delivered. (Silberman v. Fretz, 16 Misc. Rep. 449; Nightingale v. Eiseman, 121 N. Y. 288.)

The case was submitted to the jury upon the theory that the plaintiff was entitled to recover the contract price if he was willing to make good the deficiency.

The court charged the jury that it was conceded that the contract had not been substantially performed, and also said: “ If you find that the contract was substantially performed with the exception of these matters which the plaintiff offered to make good, and that he is unreasonably prevented from making it good, he is entitled to recover.” This proposition cannot be sustained. The defect being of a material character, the defendant had the right to terminate the contract and to require the plaintiff to remove the mill, as not conforming to it, without regard to the intention of the plaintiff. (Feinberg v. Weiher, 46 N. Y. St. Repr. 389 ; Brown v. Foster, 108 N. Y. 387; Glacius v. Black, 50 id. 145 ; Smith v. Brady, 17 id. 173 ; Pullman v. Corning, 9 id. 93.)

If, however, the defendant agreed or assented to the substitution of a new tower, and the plaintiff procured one which would have been efficient and satisfactory, the act of the defendant in preventing its erection was a breach of the contract on her part which might and probably would entitle the plaintiff to recover his damages in an action brought for that purpose. If they could be recovered in this action it would not avail the plaintiff, as he neither claimed nor proved damage arising from a breach of the agreement nor from being prevented from performing it. (Butler v. Butler, supra ; Garvin Machine Co. v. Hutchinson, 1 App. Div. 880.)

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

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  