
    ADDISON ALGER, Plaintiff and Respondent, v. JACOB VANDERPOEL, Defendant and Appellant.
    I. Contract—Building.
    1. Bxtra worh, whit is not under special clause,
    
    
      a. Under a clause as follows: “Should the owner at anytime request any alterations, deviations, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to, or deducted from, the amount of the contract by a fair and reasonable valuation,” work done and materials furnished upon and for the building agreed to be built by the contract, will not be regarded as extra work, although not called for by the contract or the specifications, but will be deemed as done under the contract.
    1. Such work and materials cannot be recovered for as extra work and materials.
    3. Breach of, hy Guilder.
    
    1. Breach pleaded as a bar, and also damages caused thereby attempted to be pleaded as a counter-claim.
    
      
      a. When attempt to prove on the trial damages, does not interfere with subsequent reliance on the bar.
    1. When the judge at the trial, without putting the defendant to his election, makes a ruling which renders the plea in bar inapplicable, and such ruling is error for which the judgment is reversed.
    II. Judgment.—Eeveksal of.
    
      1. Theory—Game tried and disposed óf on- wrong theory, when the judgment reversed by reason of the error.
    
    1. When general exceptions have been taken to rulings made, and propositions charged, which have for their basis only such erroneous theory.
    Before Jones, McCunn and Freedman, JJ.
    
      Decided December 31, 1871.
    Appeal from judgment and order denying motion for new trial.
    This action was brought to recover the sum of four thousand one hundred and eighty-two dollars, the balance alleged in the complaint to remain due of the sum of seven thousand dollars, which the complaint alleges the defendant promised to pay the plaintiff for services rendered by plaintiff as a builder, and materials furnished by him, in and about the erection of certain buildings.
    The defendant pleaded, among other defenses, that the services were. rendered and materials furnished under a contract annexed to the- answer, that plaintiff failed to perform said contract according to its terms, that he was notified to perform, but failed to comply, and gave up and surrendered the contract, that plaintiff, after becoming entitled to the second payment according to said contract, which was fully paid when due, utterly failed to perform any of the further requirements -of the contract or to be entitled to any more payments or money according to its terms.
    The answer also contained the following clause :
    
      “5th. Defendant further says that be has sustained damages to the amount of two thousand five hundred dollars, by reason of the non-performance by plaintiff of said contract, and which sum plaintiff is liable to pay this defendant on account of the expenses paid and, sustained by defendant in procuring materials and labor for the performance of said contract, and defendant demands judgment therefor against plaintiff.”
    There was a reply«consisting of a general denial.
    On the trial plaintiff offered to read in evidence an agreement in writing, under seal, dated November 15, 1865, made between him and defendant, for the erection of the buildings mentioned in the complaint.
    This agreement contained the following clause :
    “ Third. Should the owner at any time during the progress of said building, request any alteration, deviation, additions, or omissions, from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”
    The defendant objected to the reception of this agreement on the ground that the complaint was not founded thereon. The objection was overruled, and defendant excepted. The agreement was then read in evidence by plaintiff.
    Plaintiff also offered to read in evidence a subsequent agreement, under seal, dated December 6, 1865, made between him and defendant, whereby he, the plaintiff, undertook to do and perform certain alterations and enlargements for the sum of two hundred dollars, which defendant agreed to pay therefor. This contract contained the following clause:
    “ And it is hereby further .agreed between the parties hereto, that this agreement shall not in any way alter, vitiate, or make null and void the existing agreement between them hereinbefore named and bearing date November 15,1865;”
    The plaintiff being called as- a witness and asked, “State the circumstances under which you left the work?” answered, '“Defendant forbid me finishing the washing down of the front. He Ordered me to go away, that I had no more to do with the work.” The question was then put to him, “State the value of the work and material which you furnished on that house ?” The question was objected to on the ground that the work was. done under the contracts and the complaint is not on them. The objection was overruled, and defendant excepted. . He answered, Five thousand nine hundred and forty-five dollars and thirty-seven cents. He was then asked, and answered, as follows:
    . “ Q. Have you stated the value of all the work you did?
    ;,, ‘A. I have done other work besides what is named.
    “Q. What is the value of the additional work you did?
    “A. It was work done not specified in either of the contracts.
    . “ Q. How much was that ?
    “A. TÉree hundred and fifty-nine dollars and seventy-four cents. (
    “ Q. Did defendant promise to pay you for the work ?
    “A. He did, sir.
    “ Q. Was there any more work done ?
    . . “ No more work.” ,
    After' considerable cross-examination, the court made the following statement:
    : “The court here stated to counsel for plaintiff that as the pleadings, now. stand the-plaintiff would be confined to a recovery of the extra work done outside of the two contracts.”
    After plaintiff had rested, counsel for defendant offered to 'show by a witness on the stand:
    
      “That plaintiff abandoned the work mentioned in the contract in evidence, and that defendant was obliged to go on and complete the work, and that defendant suffered damages by reason of plaintiff’s not fulfilling the contract set out in defendant’s answer, which damages defendant proposed to prove amounted to $3,500, and which he, defendant, claims to set off to plaintiff’s claim in this action, and also by way of counter-claim in this action.”
    This evidence was objected to by plaintiff’s counsel, and was excluded by the court, and the counsel for defendant duly excepted to such decision.
    The evidence showed that the work and material claimed to be extra were done and furnished on and for the building contracted to be erected under the foregoing written contracts.
    The court charged the jury, among other things, that the plaintiff had testified that in the progress of the work done under the contracts he performed certain extra work by direction of the defendant, for which the defendant subsequently promised to pay; and that if they believed the plaintiff did the work under and by direction of the defendant, he was entitled to recover. The defendant excepted to this charge.
    The jury thereupon rendered a verdict for the plaintiff for the sum of three hundred and sixty-two dollars and sixty-four cents.
    The defendant’s counsel thereupon made a motion for a new trial upon the judge’s minutes, which was denied by the court, and exception duly taken by defendant’s counsel.
    Judgment having been entered on the verdict, defendant appealed therefrom, and also from the order denying the motion for a new trial.
    
      Sheldon & Brown, attorneys, and H. Sheldon, of
    
      counsel for appellant, urged:—I.
    The court erred in admitting proof of the work performed. The work performed was under a written contract, under seal, and no action could be maintained upon the common counts. The action should have been upon the contracts alleging performance on the part of the plaintiff (1 Chitt. Plead. 340; Cow. Treatise, 635, a; 7 Cranch, 299 ; Adams v. Mayor, &c., 4 Duer, 295 ; Farron v. Sherwood, 17 N. Y. 229 ; Harley v. Black, 28 Id. 438; Addison v. Collins, 30 Barb. 430; 18 How. Pr. Rep. 235 ; 9 Abb. Pr. Rep. 353). The contracts being under seal, the action should be upon them, alleging performance by plaintiff.
    II. There was no distinction between the so-called extra work, and the other work. It was all performed upon the same building, and under the same contract. Part of it consisted of an enlargement of the wall, and part in other alterations made at the request of the defendant. This work is most clearly all embraced in the contract, (a) Subdivision 3 is as follows :. “ Third. Should the owner at any time during the progress of the said building, request any alteration, deviation, additions, or omissions from the said contract) he shall be at liberty to bo so, and the same shall in no way affect or make void the contract, but will be added or- deducted from the amount of the contract as the ■case may be, by a fair and reasonable valuation.” We say, therefore, that the extra work was embraced in the written contract; that it was necessary to proceed upon the contract, and to allege and prove performance thereof, to recover from the' work and materials embraced in the verdict. (5) The charge by the court to the jury is as follows : “H you believe the plaintiff, that he did the work under and by the direction of the defendant, he is entitled to recover,”—which was duly excepted by defendant’s counsel,—was for the same reasons erroneous. Most clearly the plaintiff was not entitled to recover, for the reason that the work was embraced in the contract, as above stated, and nothing embraced in the contract could be properly recovered in this form of action.
    III. The answer of the defendant sets up that the claim of the plaintiff in his complaint arose under the contract set out in the case, that the plaintiff failed to perform and abandoned the contract, and was not entitled to any further pay by its terms. And the answer further claims that defendant suffered two thousand five hundred dollars damages by reason of non-performance of the contract, which defendant claimed to recover of plaintiff in this action. On the trial of the action, and while defendant was on the stand as witness, “ Counsel for defendant offered to show by the witness that plaintiff abandoned the work mentioned in the contract in evidence, and that defendant was obliged to go on and complete the work, and that defendant suffered damages by reason of plaintiff, not fulfilling the contract set out in defendant’s answer, which damages defendant proposed to prove amounted to two thousand five hundred dollars, and which defendant claimed to set off to plaintiff’s claim, and also by way of counter-claim in this action.” “ This evidence was objected to by plaintiff’s counsel, and was excluded by the court, and the counsel for defendant duly excepted to such decision.” This ruling we insist was manifest error, (a) The labor performed and the material furnished, recovered for in this action, were performed and furnished confessedly in and about the same building specified in the contract, and the defendant was therefore entitled to show non-performance as a full defense. (5) The defendant was also entitled to recover any damages he was entitled to in this action, inasmuch as the action was based upon a claim of plaintiff arising upon contract and upon the very contract for the erection of the buildings upon which the work was done and materials furnished, claimed in plaintiff’s complaint, - (c) The evidence proposed was, admissible under the provisions of sections 149 and, 150, of the Code. 1st. This claim arose out of the same.transaction mentioned in plaintiff’s.complain t.3d. The plaintiff’s claim is on contract, and thp, defendant’s claim arises also on contract and is expressly admissi-, ble under subdivision 2 of section 150-of, the.Code., The courts have nowhere confined, a counter-claim to, claims arising out of the same cause of action-specified in the complaint, but when the action, is upon,contract, any other claim of the defendant, arising upqn, pontract also, may be recovered, in the same action by defendant., (Boston Silk and Woolen Mills v. Eule, 37 How, Pr. 299 ; Vassa v. Livingston, 3 Kern. 256.; Beardsley v. Stover, 7 How. Pr.; Gleason v. More, 2 Duer, 642; Shubart v. Harteau, 34 Barb. 447), , It may.be for either liquidated or unliquidated damages) Signot v. Redding, 4 E. D. Smith, 285); and of unrequitable or legal nature (Currie v. Cowles, 6 Bosw. 453;. see also Bates v. Rosekrans, 37 N. Y. 409;; DeWolf v. Crandall, 1 Sweeny, 556).
    IV. The verdict was improperly .influenced, by mis-, direction of the judge., ■ The cqurt. should have stated that if the work was done on the tpiildings, embraced, in the contract, although not specified, if done by (defendant’s direction, it, was embraced in subdivision 3 of. the contract, and could not be recovered in this action., And this point is now. tenable although títere was go specific exception to that effect (2 Lans. Sup. Ct. Rep. 94; Archer v. Hubbell, 4 Wend. 514; Harris v. Wilson,. 1 Id. 511; Wardell v. Hughes, 3. Id. 418 ; Hill & Denio, Sup. 243). .. , ,
    
      H. A. Gildersleeve, attorney and of counsel forj respondent, urged: ,
    I. The court properly overruled the offer of the defendant to prove, by way of counter-claim, a breach, of the contract on the part of the plaintiff. . First. There is no sufficient averment of fa counter-claim contained in the answer., The. defendant alleges no performance, or offer to perform, ;on his own part (3 Chitty’s Pl. 160; Abb. Forms, 358, 359; Walker v. Millard, 29 N. Y. 375). (a.) The matter in the answer is not in any respect the, statement of a counter-claim (Clough v. Murray, 19 Abb. 97; Cumings v. Morris, 3 Bosw. 560 ; Beers v. Waterbury, 10 Bosw. 397 ; Burke v. Thorn, 44 Barb. 363). Secondly The defendant was estopped, by his own act, in preventing the plaintiff from litigating his rights under the contracts, from giving evidence for the purpose of establishing a cause of action under the same contracts against the plaintiff (Walker v. Millard, 29 N. Y. 375).
    II. All questions under the contract were excluded on defendant’s motion. , , ' ’ ",
   By the Court.—Jones, J.

The charge of the judge, that the plaintiff was entitled to recover for the extra work if the jury believed his testimony, and that the extra work was done under the direction of the defendant, coupled with his overruling defendant’s objection to the question, “ State the value of the, work, and material which you furnished on that house?” (which objection was based on the ground that the work was done under the contracts and the complaint was not on them) and his ruling that as the pleadings stood the plaintiff would be confined to a recovery of the extra work done outside of the two contracts, was clearly a ruling that the work for which a recovery was had was not done under or included, in the contracts, and, as a consequence of this, that a breach of these contracts by plaintiff was no defense. It is evi-' dent that the case was tried and disposed of on this theory.

The exception to this part of the charge sufficiently raises the question as to whether the principles on which the case was disposed of are correct or not.

There is no dispute but that the work recovered for was done on the building which the defendant had agreed by written contract to erect, and for the purposes of this decision it must be assumed (for so the •jury have found) that the work recovered for was done under defendant’s directions, and that it was not specified in the contracts, specifications or plans..

But, notwithstanding all this, it was under the third clause of the contract done under and included in the contract; and, consequently, if the contract had not been fully performed, the plaintiff was not entitled to recover for the work for which he was allowed to recover.

Although the defendant pleaded the non-performance as a bar, and attempted to plead damages sustained by that non-performance as a counter-claim, yet there having been no motion made to compel an election, he was at liberty to elect at the trial.

The fact that he, after the court had held that certain work claimed for by plaintiff was not work under the contract, sought to avail himself of the damages caused.by the breach as a counter-claim, should not prejudice him in his right to elect to use that breach as a bar when the ruling of the court is such as to put him on an election.

The principle on which the case was tried was erroneous, as above stated, and the exception to the charge sufficiently presents the error for review.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Ereedmak, J., concurred.  