
    Frederick Klingman, Appellant, v. Samuel Quincy et al., Respondents.
    (Supreme Court, Appellate Term,
    December, 1898.)
    Contract — Abandonment because security is not given — Measure of damages.
    Where a contract between a builder and masons, for work to be done by the latter upon a building, provides no security for the performance of the contract by either party and the masons, becoming alarmed at the financial condition of the builder and the incumbrances upon the building, refuse to proceed unless the builder gives them security, and upon his failure to do so, proceed with the work for a time and then abandon it, the contractor may recover of the masons the extra cost to him of doing the work, and they can recover of him nothing for the work which they did before abandoning and after he had neglected or refused to secure them.
    Appeal by the plaintiff from a judgment of the Municipal Court, borough of Manhattan, for the seventh district, rendered in favor of the defendants, by the justice thereof, without a jury.
    The nature of the action and the material facts are stated in the opinion.
    M. Jesse Henry (A. B. Schleimer, of counsel), for appellant.
    H. Crawford, for respondents.
   Per Curiam.

, The plaintiff, a builder, entered into a contract with the defendants, as contractors, whereby the latter agreed to do the mason work on the building to be erected on the northwest corner of the Boulevard and Ninety-seventh street, in the city of New York, for the sum of $2,300. Shortly after entering upon the performance of the contract the defendants refused to proceed any further with the work unless payment thereof was secured, because, as claimed, the premises in question were heavily mortgaged, and a lien of $532.20 against the plaintiff had been filed in the clerk’s office of the county of New York on the same day the contract was signed. After some discussion it was arranged that a certified check for a stipulated sum, as security for the faithful performance of the contract in question, be deposited with their respective banks by each of the parties thereto, and that an agreement to that effect should be drawn up and signed by the parties. The defendants, it seems, were ready and willing to sign such agreement and to deposit their certified check for said sum, but the plaintiff was not, and, after securing a number of postponements with a view of carrying out the arrangement, he finally informed the former that as the contract did not require him to give any security he would not do so, and insisted upon their performing the same without it, stating that unless they did so he .would find somebody that would.” In the meantime, the defendants had resumed work upon the building, but upon the plaintiff’s refusal to make and execute the proposed new agreement they abandoned the same, whereupon the plaintiff made an agreement with one Andrew Boese for the completion of the work referred to, for which he was to receive, and did receive, when the work was finished, the sum of $2,600. The plaintiff then brought this action to recover the sum so paid in excess of said contract price. The pleadings were oral. The answer was a general denial and set up a counterclaim for $214.26 for labor and materials rendered and furnished by the defendants in reliance of the plaintiff’s alleged agreement to give security. The trial justice gave judgment for the defendants in the sum last mentioned, and the plaintiff has brought on this appeal.

A careful reading of the record convinces us that the conclusion so reached is not warranted by the evidence. The justice evidently assumed that the proposition to deposit checks for the faithful performance of the contract has been definitely and positively assented to by the plaintiff. However, the testimony introduced on behalf of the defendants, viewed in its most favorable light, shows at most an agreement on the part of the plaintiff to sign the paper writing in question, and not a positive agreement, independent of any writing, to produce such check.

According to the testimony of defendant Orawford, the agreement was drawn up and a number of appointments were made for the purpose of signing the same and producing the certified checks, but the plaintiff failed to put in an appearance, and that, after some effort, the witness succeeded in finding the plaintiff and was informed by him that he would not give security.

The father of this last witness testified that the plaintiff said he would sign the agreement and put up a certified check; ” and the testimony of the defendant Quincy was to the same effect in the following language: “ Q. Did Klingmam promise to sign that agreement? A. Yes, sir. Q. Did he promise to put up certified checks as security? A. Yes, sir. Q. Did you continue on the work until he finally declined to give any security? A. Yes, sir, up to the time Boese took possession, as fast as the weather would allow.”

It thus appears that the defendants resumed work upon the building without having secured the plaintiff’s signature to the proposed agreement, and the deposit by him of the security referred to. Under these circumstances, and in the absence of proof tending to show that the plaintiff requested the defendants to renew the work, and that in consequence of such resumption he would give the security referred to in the proposed agreement, the judgment is clearly erroneous.

The contract did not require either of the parties to give or furnish security for its faithful performance, and hence the defendants’ abandonment of the work for the failure of security was nor justified in the absence of a valid modification thereof in that respect.

The defendants having abandoned the contract on their part and performance of the same not having been waived or released by the plaintiff, they must suffer all the consequences legally resulting from their default.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Beekmah, P. J., Guzdebsleeve and Giegebioh, JJ.

Judgment reversed and new trial ordered, with costs to appellant, to abide event.  