
    James R. Wright, Resp’t, v Guillaume Reusens, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    1. Mechanics’ lien—Building Contract.
    By a building contract plaintiff was to do work on defendant’s house amounting to $5,544, by a certa n date; it was also provided that if the architect should certify to defendant that plaintiff had failed or refused to perform the work, then the former might terminate the employment of the contractor and finish the work himself, etc. The referee in this action to foreclose a mechanics’ lien found that this had been done, but that the failure of plaintiff to perform, was due to the non-payment of two instalments due, and that the architect had wrongfully withheld his certificates as to such work. There was no time fixed for said payments in the contract; but it was stated that the contract price was to be paid in four instalments upon the certificate of the architect. Held, that the parties-intended that the instalments should become due at different dates intermediate the date and completion of the contract as the proportionate-amount of work was finished, and as defendant did not perform his part of the contract, he was not in a position to terminate the contract by the¡ discharge of the plaintiff.
    2. Same—Evidence.
    The referee reserved his decision upon certain objections made by defendant’s counsel to evidence offered, against the objection of the latter. Held, that as the questions reservedvelated to evidence wholly immaterial and which could have no effect upon the result, it did not constitute a sufficient ground for reversal.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered on the report of a referee.
    
      Michael H. Gardozo, for app’lt; Gyrus William Horton and Silas J. Owens, for resp’t
    
      
       Affirming 39 St. Rep., 804.
    
   O’Brien, J.

The plaintiff in this case has recovered a judgment against the defendant for the value of his work and materials in altering and repairing a building, and the amount has been declared to be a lien, under the statute, against the premises on which the building stands. The form of the action was such as is usual in the foreclosure of a mechanics’ lien. The complaint, sets out a contract between the parties, and avers in substance that the plaintiff was prevented or excused from performance by reason of certain acts of the defendant The referee has found that in August, 1888, the plaintiff and defendant entered into a contract, in writing, whereby the plaintiff agreed to perform the labor and furnish the materials in making certain repairs, additions and alterations in and upon a dwelling house on the plaintiff’s premises according to plans and specifications, for the sum of $5,544.50. The plaintiff entered upon the performance of this contract and actually continued to work under it until discharged by the defendant, but the work contemplated was never completed by the plaintiff. The most important question in the case is the proper construction to be given to this contract. By its terms it was to be performed on or before December 1, 1888. It was also provided that in case the architect, who was, by the provisions of the contract, to see to its performance in all details and particulars, should certify to the defendant that the plaintiff had neglected, failed or refused to-perform, that then the defendant might terminate the employment of the contractor and employ others to finish the work and furnish the materials, and in that case the contractor should Hot be entitled to any compensation for what he had done under the contract, except to the extent of any balance of the contract price that might remain after paying for the work and materials expended by the defendant after such termination, and if the cost of completing the work after the owner had elected to terminate the contract should exceed the balance of the contract price remaining in his hands, then the contractor was bound to make good to the owner such excess.

On the 7th of January, 1889, the architect named in the contract delivered to the defendant a certificate in which it was stated that the plaintiff had refused, neglected and failed to comply with the terms of the contract, and that sufficient ground existed for terminating the employment of the plaintiff, and for employing other persons to finish the work contemplated by the contract and furnish the materials therefor. On the following day the defendant notified the plaintiff in writing that he had been furnished with such certificate, reciting its contents, and that he elected to terminate plaintiff’s employment under the contract and that he proposed to complete the work himself or cause it to be completed. That the work contemplated by the contract was not ■completed when this notice was served is admitted. But the referee has found that the- failure of the plaintiff to perform the contract within the time stipulated is attributable to the refusal of the defendant to pay the instalments of the contract price when they became due. This proposition is deduced from another finding to the effect, that prior to December 1, 1888, the date when the contract was to be performed, the plaintiff had so far made performance as to entitle him to be paid the first two instalments of the contract price amounting to $2,500 and that he had been paid but $1,500.

That the architect unreasonably refused to make and deliver to the plaintiff a certificate that the amount was due and payable under the contract, and that the defendant unreasonably refused to pay the same to the plaintiff, and that such wrongful action, on the part of the architect and -the defendant, greatly impeded and delayed the plaintiff in the prosecution of the work. These findings so far as they embrace and relate to matters of fact were made by the referee upon evidence which was very conflicting .and, therefore, conclusive upon the court, as it cannot fairly be urged that they are wholly unsupported by proof. But when and in what manner the contract price was payable depends upon the construction of the contract itself and presents a question of law. The contention of the defendant’s counsel is that as there was no time specified in the contract for the payment of the price it was not payable until the work was completed, or not at least until the certificate of the architect was furnished that it was due .and payable. The contract was evidently written upon a printed blank form in use for that purpose, and neither the time when nor the contingency upon which the several instalments became due was distinctly expressed. But between the date of the contract in August and the time for its completion on December 1st the whole price was to be paid in four separate instalments, two of $1,000 each, one of $1,500, one of $1,744.50, and the balance of $300 to be paid on December 1st if the contract was fully completed on that day, “provided that in each case the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfae tian.” It was further provided that in case any mechanic’s lien, chargeable to the contractor, was filed which bound the land or the owner, then the defendant should have the right to retain from “ any payment then due or thereafter to become due ” an amount sufficient to discharge the same. It is quite evident that, the parties intended that the instalments should become due at. different dates intermediate the date and the completion of the contract. To assent to the construction contended for by the defendant would make the contract unreasonable and place the plaintiff entirely at the mercy of the defendant and the architect, and such a construction should be avoided when the general scope of the instrument and the terms used by the parties fairly permit a more just and reasonable interpretation. Russell v. Allerton, 108 N. Y., 288; 13 St. Rep., 629.

The referee held that by the payment clause the parties intended that each payment should become due when such proportion of the work was performed as the particular instalment bore to the-whole contract price. The $1,500 paid on the contract by the defendant seems to have been certified by the architect and paid upon this principle. Both parties understood that the plaintiff would, as the work progressed, require money to pay laborers and mechanics and to purchase materials and it was for ■ this reason that the contract price was made payable in sums as the progress of the work might demand on the one hand and justify on the other. The construction which the referee put upon this provision of the contract is just and reasonable and in accordance with what the parties themselves must have intended. White v. Hoyt, 73 N. Y., 505 ; Halpin v. Ins. Co. of N. A., 120 id., 73; 30 St. Rep., 261; Tallcot v. Arnold, 61 N. Y., 616; Barlow v. Scott, 24 id., 40. It follows that the defendant did not perform his part of the contract and was not in a position to terminate the contract by the discharge of the plaintiff. If, as the referee has found, performance by tbe plaintiff was prevented by the default of the defendant in making the payment according to the terms and meaning of the contract, then the failure of the plaintiff to have the work completed at the time named in the contract is excused. Kingsley v. The City of Brooklyn, 78 N. Y., 200. When the employer under such circumstances terminates the contract and arrests its-performance the contractor may recover, in a proper action, th& value of the work performed and the materials furnished. Clark v. The Mayor, 4 N. Y., 338; Jones v. Judd, id., 412-414; Dillon v. Anderson, 43 id., 237; Lawson v. Hogan, 93 id., 39.

Whether the refusal of the architect to give the plaintiff the certificate, upon which by the terms of the contract the payments-were to be made from time to time as the work progressed, was- or was not unreasonable, became in this case a question of fact, depending upon the amount of work done, and the finding concludes us on that question. The contract having been waived by the plaintiff and a recovery sought upon a quantum meruit, the question of the value of the work done and materials furnished, must, in this court, be deemed settled by the findings of the referee upon conflicting evidence.

The learned counsel for the defendant urges that the judgment should be reversed on account of numerous rulings made by the referee in the course of the trial, and to which exceptions were taken. It would be difficult to sustain all the rulings to which our attention has been called, if they were material to the real issue in the case, or could have prejudiced the defendant. The referee without consent reserved nis decision upon certain objections made by defendant’s counsel to evidence offered, and upon motions to strike it from the case. In fact these questions were reserved against the objection of the defendant’s counsel. Ordinarily such rulings furnish grounds for reversal, unless the questions reserved are immaterial, or of such a character that if decided against the party raising them the decision would constitute no sufficient ground of error. Sharpe v. Freeman, 45 N. Y., 804; Lathrop v. Bramhall, 64 id., 365. The questions thus reserved related to evidence that was wholly immaterial It. seems that the architect and the plaintiff met about the 1st of January, and but a few days before the notice terminating the contract was served, and there was some proof that they had an understanding that thereafter payments were to be made weekly, but that the plaintiff should go on with the work. It was claimed that the architect had no power to bind the defendant by such an arrangement. Assuming that he had not, it is apparent that this conversation played no part whatever in the legal controversy. The plaintiff recovered, not upon or by reason of any verbal arrangement made between himself and the architect, but in the absence of any contract except such as the law implies from the rendition of the services. If this proof showed any unauthorized arrangement between them outside the written agreement, it certainly was never acted upon, and was followed by the notice that the defendant elected to terminate the contract Conversations between the contractor and the architect who is put in charge of the work are generally admissible in evidence in actions against the owner for the price of the work. He is the agent of the owner, and his directions in regard to the manner of doing the work, and as to the materials to be used, and in many other respects, may become admissible in evidence.

This conversation between the plaintiff and the architect was wholly immaterial as it was not claimed that the contract was modified or extended but that the failure to perform was chargeable to the defendant. It could have no effect whatever upon the result. The recovery was for the value of the plaintiff’s services, and he took nothing and could not possibly take anything by any arrangement between himself and the architect as to different periods of payment from that prescribed in the contract.

The referee permitted the plaintiff, after his case was closed and after the defendant had rested, to reopen the case and to give testimony in chief, and various objections were made and exceptions taken on this ground. That was- a matter wholly in the discretion of the referee and is not the subject of review Gere. Many of the exceptions referred to related to the value, quality and actual expense of the work on the building by persons employed. by the defendant after he had given the notice terminating the contract. These questions were not material. They would have been, as a basis for damages against the plaintiff, had he abandoned the contract or failed to perform it without sufficient excuse. But in an action where the contract has been terminated by the owner wrongfully, and where the contractor thus prevented from performing waives the contract and seeks to recover the value of the work done and materials furnished, it is of no consequence whether the owner has expended in finishing the job more or less. When the fact is found on sufficient evidence that his default in making payments prevented performance, and that he wrongfully terminated, the contract, the cost of subsequently completing the work has. no bearing upon the right of the contractor to recover the value-of what lie may have done under the contract. Aside from the construction of the contract in regard to the time of payment, the case turned upon the decision of questions of fact and, while the referee would have been warranted in taking another view "of the evidence in some respects, yet none of the findings are wholly unsustained. It was a case for deciding upon the credibility of witnesses and the weight and effect of evidence, questions peculiarly within the province of a trial court

On the whole we are of the opinion that the record does not disclose any error that requires, or would justify a reversal of the decision of this referee. The judgment should be affirmed, with costa

All concur.  