
    Along-The-Hudson Company, Appellant, v. Charles H. Ayres, Respondent.
    First Department,
    December 3, 1915.
    Contract — building contract — failure of contractor to perform — measure of damages — extra work.
    A building contractor should not be denied a recovery for labor and materials furnished at the special instance and request of the owner, upon the ground that he has failed to fully or substantially perform the written contract, where it appears that the labor and materials furnished were outside of and beyond the scope of the contract.
    The measure of damages on failure to complete such a contract is the difference between the contract price and the actual cost of completion.
    Appeal by the plaintiff, Along-The-Hudson Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the lYth day of September, 1914, upon the report of a referee dismissing the complaint on the merits, and awarding to the defendant an affirmative judgment on his counterclaim in an action to foreclose a mechanic’s lien.
    
      Paul Armitage of counsel [McKelvey & Favour, attorneys], for the appellant.
    
      Lawrason Riggs, Jr., for the respondent.
   Clarke, J.:

Plaintiff and defendant entered into a contract whereby the plaintiff agreed to furnish the materials and labor and to build and erect a dwelling house on the real property described in the complaint for the defendant.

The first cause of action alleged in the complaint is for the amount of the balance alleged to be due upon said contract. The first cause of action was dismissed upon the ground that the plaintiff had failed to complete. No question is raised upon this appeal as to the propriety of such dismissal.

The second cause of action was for $1,205.52, the value of labor and materials, not specified or included in the written contract, furnished at the special instance and request of the defendant and for which he promised and agreed to pay. This cause of action was likewise dismissed upon the ground that by reason of the failure of the plaintiff to fully or substantially perform the contract herein plaintiff was not entitled to receive the moneys claimed on account of the alleged extras incident to said contract. The referee found as matters of fact that between the 20th day of September, 1909, and the 1st day of January, 1911, at the special instance and request of the defendant, plaintiff performed certain extra work and furnished said extra materials consisting of the following items (enumerating them); that all of the said extra work and materials were furnished by the plaintiff at the special instance and request of the defendant and that a fair and reasonable value of the' same is $605.47.

There was no provision in the main contract in regard to extra work. Attached thereto were six distinct and separate sets of specifications covering electric work, painting, plumbing, carpenter, heating and mason. The only one of these that referred in any way to extra work was the carpenter. This read: “Extra Work: No extra work or charges therefor will be paid for unless price shall have been previously decided upon and the work ordered by the architect.” This provision, of course, was' confined to the subject of the particular specification, to wit, carpenter’s work, and the referee has specifically found that extra work, labor and materials were furnished at the special instance and request of the defendant. It is clear that the items specified by him and for which he has found a reasonable value of $605.47 were outside of and beyond the scope of the contract. In Mitchell v. Dunmore Realty Company (156 App. Div. 117; affd., sub nom. Mitchell v. Murray, 213 N. Y. 669), in an action to foreclose a mechanic’s lien, the Special Term had dismissed the complaint, first as to the contract work, and second as to the extra work on the ground that it was governed by the contract and was not payable until the contract work had been completely performed. This court said: “ It being conceded that the plaintiff did not complete, the court was justified in deciding against the plaintiff in so far as his cause of -action was for a recovery for work done under the contract.

“ But the plaintiff proved a large, amount of extra work entirely outside the contract, performed upon the express orders of the defendant Murray. No claim was made upon the trial that this extra work was not done properly, at Murray’s request, nor as to the price thereof as stated. This claim was also disposed of by the trial court upon the same basis as the claim for work under the contract. Here, we think, was error. There is no provision whatever in the contract governing extra work, nor is extra work mentioned or alluded to or provided for. Hence, being extra work and being outside of the contract, it could not come within the provisions thereof or be governed by the clause in regard to payment upon full completion. * * * Clearly a great part of the extra work sued for comes within the definition of Shields v. City of New York (84 App. Div. 502) as ‘ work arising outside and entirely independent of the contract — something not required in its performance,’ and as to such work plaintiff is entitled to recover, although he did not complete his contract. (Woodward v. Fuller, 80 N. Y. 312; Garnsey v. Rhodes, 45 N. Y. St. Repr. 145; affd., 138 N. Y. 461. See, also, Hedden Construction Co. v. Rossiter Reatty Co., 136 App. Div. 601.) ”

Upon the authorities cited the dismissal of the second cause of action was error.

The defendant in his answer counterclaimed his damages for the failure by plaintiff to complete. The referee found that by reason of the plaintiff’s failure to complete the defendant had been put to and incurred the expense of repairing and correcting- certain of the faults, errors and omissions of said contract in the amount of $1,004.26; although he had dismissed the claim for extra work as a cause of action he allowed the amount found by him, to wit, $605.47, therefor as an offset and directed judgment for defendant for the difference, namely, $398.78. In this regard the court applied an erroneous rule. The correct rule of damages on failure to complete is the difference between the contract price and the actual cost to the defendant of completion. The unpaid balance of the contract price was $878.69. Deducting that amount from the entire sum found by the referee to have been paid by the defendant for completion leaves $125.56 as the amount that should have been awarded on the counterclaim. Deducting this from the amount of the extra work as found shows a balance due to the plaintiff of $479.91 for which judgment should have been entered for the plaintiff. Accepting the referee’s findings of fact, the judgment appealed from and the following conclusions of law, the fifth, ninth, thirteenth, fourteenth and fifteenth, should be reversed, and proper findings in lieu thereof, as indicated in this opinion, presented, and judgment should be entered for the plaintiff for said sum of $479.91, with costs and disbursements to the appellant.

Ingraham, P. J., Laughlin, Scott and Smith, JJ., concurred.

Judgment and findings reversed as indicated in opinion, and judgment ordered as directed in opinion, with costs to appellant. Order to be settled on notice.  