
    Joseph H. Pierce, Appellant, v. Richard H. Thurston, as Ancillary Administrator of William H. Vermilyea, Deceased, Respondent.
    
      Countermand of an order to prepare plans for a building—recovery for work aVready done — burden of proving the countermand.
    
    The countermand of an order given to an architect to prepare preliminary draw- ■ ings and plans for a building, made after the architect has completed them, does not affect his right to recover for such preliminary drawings, but only operates to prevent his proceeding to make complete plans and drawings.
    In an action by the architect to recover-upon the contract, the burden of proving an effectual countermand is upon the defendant who asserts it.
    Appeal by the plaintiff, Joseph H. Pierce, from a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Chemung on the 4th day of May, 1894, upon the verdict of a jury rendered after a trial at the Chemung Circuit, and also from an order entered in said clerk’s office on the 4th day of May, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    The original defendant was William H. Yermilyea, but he having died subsequent to the entry of the judgment, the ancillary ■administrator was substituted in his place.
    The plaintiff, in his complaint, claimed to recover the value of •services performed in making preliminary drawings and plans for a building, under an employment by the defendant. The latter, for ■answer to the complaint, interposed a general denial.
    On the trial, the evidence introduced by the parties authorized a finding by the jury that the plaintiff, an architect, was employed on Thursday, the 30th of October, 1890, by the defendant at Elmira, F. Y., to make preliminary drawings and plans for a hotel at Oaines, Pennsylvania; that thereupon the plaintiff at once comjnenced making said drawings and plans, completed the same, and that the value, of the work done by him was seventy-five dollars.
    The defendant, ag a witness on the trial, denied that he authorized the plaintiff to prepare plans and drawings, and also produced evidence tending to show that on the Monday following the day when it was claimed the contract was made, he countermanded the order, if any was, in fact, given.
    The learned trial judge, after instructing the jury that the first question to be determined ivas whether the defendant employed the plaintiff, as claimed, used the following language: “'Now, gentlemen of the jury, if he did, then the original contract was made, and for it this plaintiff can recover unless the order was rescinded upon the Monday following. So the second question for you to determine is: Was this order rescinded, if one was made, on the Monday following? If it was, this plaintiff cannot recover in this case,, because a man has a right to go into the office and tell any one in apparent charge of the office that he need do no more work upon the contract for which he was employed. So you are to determine' whether the contract was made first, and, second, was so rescinded. If this contract was made, and was rescinded, the plaintiff cannot recover. * * * Plaintiff’s counsel: We except to the charge-that if the contract was rescinded the plaintiff cannot recover. And we ask your honor to charge that if the plan had been drawn before-any attempt was made to rescind the contract, that the rescission of the contract could have no effect. The court: That would be so, but there is no evidence in this case upon which I can submit that, question; that it had been drawn before the time of the claimed rescission. Exception taken by plaintiff’s counsel, not only to the= refusal to charge, but also to what the court did charge.”
    
      Francis E. Baldwin, for the appellant.
    
      Richard H. Thurston, for the respondent.
   Putnam, J.:

It is doubtful whether the learned trial judge was correct in determining that there was no evidence introduced by the parties that could be submitted to the jury, showing that the preliminary drawings, for preparing which the plaintiff sought to recover, had been completed before the defendant attempted to countermand his order therefor. The contract was made on Thursday, the 30th day of October, 1890, and the order was countermanded on the Monday following. Three working days had intervened. It appeared that, after the employment of the plaintiff, his draftsman Bickford at once commenced the preparation of the drawings, and was assisted in the work by the plaintiff. On the Monday in question, when it was claimed the defendant countermanded his order, he, and his witness Dunham, went to the office of the plaintiff, and the person in charge produced several sheets of paper similar to the plans produced by the plaintiff on the trial. They were the floor plans of the hotel — single line sketches. The following questions were asked and answers given by plaintiff’s witness Dunham, on the trial: “Q. You and he looked at the plans that were there drawn? A. Yes, sir; at the sketches. Q. And they were pinned out upon boards, were they not ? A. Oh, no, no; I think they were in the sheet that the lady handed to us in the sheet, as I remember it. Q. And they were done, off and folded? A. Yes, sir; they might not have been folded; I cannot remember that. Q. They were off the board, however ? A. Yes, sir. Q. The work was done upon them so far as the sketching it out on a board was concerned ? A. They were not fastened to any board.”

It is to be inferred that the plans, for the making of which the plaintiff claimed to recover, were produced on the trial. The defendant and Dunham were sworn as to what took place at the time it was claimed the contract was rescinded. They were then shown the plans prepared by the plaintiff. Neither of them testified on the trial that the drawings then shown them were not the same as those produced on the trial, for the preparation of which the plaintiff claimed to recover, or that the preliminary sketches shown to them in the office of the plaintiff on the Monday in question were not completed.

Again, in a letter written November 15, 1890, the plaintiff informed the defendant that he had the sketches prepared according to his instructions. In his answer the defendant failed to make any claim that he had countermanded the order therefor before the sketches were prepared.

The plaintiff did not claim to recover for completed plans and drawings, but only for preliminary sketches, and we are inclined to think that, on the evidence introduced, the jury would have been authorized to determine that the preliminary sketches, which were shown to the defendant at the time he claimed to have rescinded the contract, were completed, and that the only effect of his countermand, at the time in question, was to prevent the plaintiff from going further and making complete plans and drawings.

But assuming that the trial judge was correct in holding that there was no evidence in the case to submit to the jury, as to whether the preliminary plans had been drawn before the defendant countermanded his order therefor, we think he was in error in charging the jury that, if the order was rescinded on the Monday following the Thursday on which it was given, the plaintiff could not recover; and in refusing to charge as requested by plaintiff, that if the plans had been prepared before the attempted countermand, such countermand had no effect.

It is true that the defendant could at any time countermand his order for preliminary sketches (Clark v. Marsiglia, 1 Den. 317; Lord v. Thomas, 64 N. Y. 107, 109, 110), and that the plaintiff could not recover for work done thereon after such countermand. But the evidence introduced on the trial wastsuch as to authorize a finding by the jury that the plaintiff was employed by the defendant to make the preliminary drawings in question, and that he commenced at once and completed them. The defense interposed by the defendant, that he countermanded the order on the Monday following the day that it was given, was an affirmative one. A countermand did not defeat the plaintiff’s recovery unless given before the work was completed. It was for the defendant to show an effectual countermand— one given before the drawings were finished. This he failed to do. The burden was upon the defendant, asserting as an affirmative defense to the plaintiff’s claim a rescission of the contract under which the plaintiff claimed, to show that such rescission was made before the work which was shown by the plaintiff to have been done by him was finished.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  