
    Wilbur Alexander, Respondent, v. Frank O’Hare and Emma O’Hare, Appellants.
    
      Complaint '—proof of a modification of a contract under a complaint alleging performance thereof.
    
    Under a complaint in an action upon a building contract, which alleges full performance of the contract, the plaintiff is not at liberty to prove a modification of the contract and performance in accordance therewith.
    Appeal by the defendants, Frank O’Hare and another, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th .day of June, 1899, upon the report of a referee.
    
      P. C. Dugan, for the appellants.
    
      Edward J. Meegan, for the respondent.
   Parker, P. J.:

The plaintiff seeks to recover the balance due upon a contract for ' furnishing materials and building a house for the defendants. He avers in the complaint that the price to be paid was §2,373 ; that he has fully performed upon his part according to the specifications contained in the contract, and .that a balance of §375 is still unpaid and due him thereon. He also claimed for some extra work done thereon. The answer denies that the plaintiff has performed on his part, and sets forth many instances wherein the work varies from the specifications, and many where work required by such specifica- • tions has not been properly done, and some where it has not been done at all. It also, by way .of counterclaim, demands damages for such failures and omissions.

The referee finds, as a fact, that the plaintiff has substantially performed the contract on his part, and allows him to recovei; for the balance due, and also for some extras, less, however, the sum of ninety-nine dollars and fifteen cents allowed the defendants as a counterclaim for damages on account of omissions and bad work.

The evidence discloses many instances wherein the work is. not performed in accordance with the requirements of the contract — some of them slight departures or entire omissions, which may he ascribed to inadvertence on the plaintiff’s' part, but there are also some departures and omissions from the specifications that cannot be considered slight or the result of an oversight. I cannot but consider them a failure to substantially perform as the contract required. In my judgment, the referee’s finding in that respect •cannot be sustained by the evidence before us.

This failure to perform is, however, sought to be excused by the plaintiff upon the ground that all such departures and omissions were sanctioned and acquiesced in, as the work progressed, by the defendant or his authorized agent; and evidence was given, under the defendant’s objection, tending to establish such fact. The referee, however, has made no distinct finding upon that question. He seems to have based his decision upon the theory that the contract was substantially performed. And yet, having admitted evidence of an excuse for non-performance according to the written contract, it is quite possible that the substantial performance to which he refers is a performance in accordance with .the amendments and. changes which the plaintiff claims were from time to time made therein.

The objection was taken by the defendants that evidence of any such changes was inadmissible under the complaint. That, under an averment that the contract had been fully performed, the plaintiff was not at liberty to prove a subsequent modification of the contract, and a performance in accordance therewith. This objection was well taken. ( La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380.) And as the admission of such evidence has in all probability influenced the referee in his decision, it was reversible error to receive it.

The plaintiff insists that this issue was fairly in the case, because it was presented by the reply to the counterclaim in defendants’ answer. But the reply, fairly construed, does not present any such issue. It refers entirely to a change in the written specifications, and not to the work done by the plaintiff. The specifications, as first drawn, were changed by consent of both parties before the contract was executed, and as so changed were a part of and annexed to the contract set forth in the complaint. And the evidence objected to tended to show an excuse for not performing according to such specifications in their modified form. The specifications annexéd to the answer, the plaintiff claimed, were not set forth in accordance with such change, and it is to such change that the reply refers. Clearly, there is no statement in the reply notifying the defendants that the plaintiff would claim on the trial that the numerous omissions and departures which the answer particularly set forth, and which were omissions and departures from the modified specifications annexed to. the contract, were all made under an arrangement witli the .defendants modifying the contract in those respects. Under the pleadings that issue, as presented on the trial, was an unexpected one to the defendants, and the evidence given upon it should not have been received.

Moreover, I am not entirely satisfied that any of the substantial omissions and departures from the contract were authorized' by the defendant. He strenuously denies that they were, or that the foreman Cain had any authority to speak for him thereon..

For these reasons I conclude that the judgment must be reversed.

All concurred.

Judgment reversed upon the law and facts, referee discharged, and a new trial granted, with costs to the appellant to abide the event.  