
    Cornelius W. H. Elting, Resp’t, v. Charles W. Dayton, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Contract—Evidence.
    Under a complaint in an action upon a building contract alleging full performance, evidence tending to excuse delays by plaintiff in completing after the time fixed by the contract, for which it provided a penalty, or to establish a waiver by defendant, is incompetent.
    3. Same—Appeal.
    Where objection to such evidence was duly taken, and no amendment asked for, the appellate court cannot consider the pleadings amended to conform to the proof.
    Appeal from judgment entered upon report of referee.
    
      W. II. Townley, for app’lt; J. J. lÁnson, for resp’t
   Van Brunt, P. J.

This action was brought to recover a balance claimed to be due upon a contract with the defendant for altering- and repairing five buildings and for certain extra work not included in the contract

The complaint alleged that on the 25th of February, 1885, the plaintiff entered into a contract with the defendant by which the plaintiff agreed to alter and repair five buildings for the defendant, and furnish materials for the work, and the defendant promised and agreed with the plaintiff to pay him the sum therein mentioned therefor. The plaintiff also alleged by his ■complaint that he had fully kept and performed said contract, and had performed all the conditions thereof on his part Then follows an allegation in regard to extra work, to which it is not necessary, in view of the conclusion at which we have arrived, to ■call particular attention. -

The defendant admitted the entering into the contract, which he alleged to be in writing and annexed as a part of his answer, .and denied that the defendant had kept and performed the contract or,its conditions upon his part, and further alleged that said ■contract provided that the plaintiff would on or before the 20th ■of April, 1886, complete his said contract, and that in default thereof he should pay as damages to the defendant for each house remaining unfinished after the above day fifty dollars per week; and that the plaintiff failed to perform and carry out the provisions of his contract in that, among other things, a large part •of the work contracted to be done by him was not done in a good workmanlike and substantial manner to the satisfaction of the architect referred to in said agreement, and also that the alterations in said house were not completed and the same not fit for ■occupancy in every respect on the 20th of April, 1885, as required by the contract, but on the contrary were never completed ■and made fit for occupancy according to the terms of said agreement by the plaintiff.

Upon the trial there was no dispute but that the contract annexed to the answer was the contract referred to in the' complaint. -Neither was there any dispute that the contract was not completed by the 20th of April, nor until a . considerable time thereafter. But it is urged that the defendant had waived the requirement of the contract that it should be completed on the 20th of April, 1886.

That by the terms of the original agreement time was of its-essence is apparent from the fact that a penalty was attached to the failure on the part of the plaintiff to complete the contract within the time therein mentioned, and therefore that unless excused for a failure to perform in time, the defendant would be entitled to-recover the damages arising from such failure to complete!

Upon the trial as soon as the plaintiff commenced to offer evidence tending to excuse his failure to perform, objection was made-upon the part of the defendant .that such evidence was incompetent, that the plaintiff had sued upon the contract alleging that he had strictly kept and performed all the conditions thereof, and that no excuse for non-performance, and no modification or waiver,, oral or written, is set up.

The referee overruled the objection, to which ruling the counsel for the defendant excepted. This, we think, was error. The-allegation in the complaint was that he had entered into this contract on the 25th of February, 1885, and that he had fully performed the same. It further appears that one of the conditions of that contract was that it should be completed by the 20th of April, and that that was an important and essential condition. Therefore the allegation of the complaint was to the effect that the contract had been completed on the twentieth of April, and this was the issue which was presented by the complaint, and which the defendant was called upon to meet. There was no-intimation of any other or subsequent contract, or of any waiver of any rights which had accrued by the execution of the original contract. Hence the defendant was not called upon to meet proof of a waiver under a complaint of this character. If the plaintiff' had intended to claim that the original contract had been modified, or any of its conditions waived, it was necessary that he-should have pleaded the same in' order, by his pleading, to give the defendant notice of such claim. An, allegation in a complaint that the terms of a contract have been fully complied with does not authorize proof that it has not been complied with because of certain facts in respect to which no mention is made in, the pleading.

As has already been stated, the only issue tendered by a pleading containing this allegation is as to completion of the contract, not to excuses for non-performance.

It might have been true that upon a proper application made the plaintiff would have been allowed to amend his complaint, and if no objection had been taken to the admission of this testimony that this court would have amended the complaint in order-to support the judgment. But in view of the fact that objection was taken to this testimony at the time of the trial upon the precise ground which is urged here, and exception taken to the overruling of the objection, this court cannot consider the pleadings amended to conform to the proof.

It does not seem to be at all necessary to consider the otherquestions raised upon this appeal. The question which has been, discussed as the pleadings now stand goes to the root of the whole-matter, and upon the record it would appear that the defendant-was entitled to offset against the claim presented by the plaintiff' at least the damages for non-performance provided for in the’ contract

The judgment should be reversed and a new trial ordered before another referee to be appointed by this court, with costs to-appellant to abide the event

O’Brien and Ingraham, JJ., concur.  