
    Charles Tinley, Respondent, v. Maude C. Van Wert, Appellant.
    Third Department,
    May 8, 1907.
    Mechanic’s lien — complaint alleging performance — judgment on quan- . turn meruit not authorized.
    When the plaintiff in an action to foreclose a mechanic’s lien alleges and proves an entire contract under which, payment is not due until performance, and failure of substantial performance is found as a fact, the court cannot direct a personal judgment against the. defendant on a quantum meruit.
    
    Appeal by the defendant, Maude C. Van Wert,, 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 24th day of January, 1907, upon the decision of tiie court rendered after a'trial at the Albany Trial Term, certain questions having been submitted.to the jury, with notice of an intention to bring up for review upon such appeal an order'entered in said clerk’s office on the 30th- day of. January, .1907, denying the • defendant’s ■ motion ■ to set aside the verdict as to the value of the plaintiff’s services.
    
      W. Everiit Van Wert, for the appellant.
    
      Mead <&. Matt [George J. Matt,. Sid, of counsel],, for the respondent.
   Cochrane, J.:

- This is an action to foreclose a mechanic’s lien,. The complaint alleges that plaintiff performed services consisting of painting and p'aperlianging in the buildings and on the premises' of the defendant, and that he furnished material therefor, “ all, of which amounted at the price agreed upon therefor, to and of the reasonable worth and value of $227.37,. which said" services performed and materials, furnished were so performed and furnished upon the order.and retainer and with the consent of the defendant and" were to be paid for upon the completion of said work, which was on the 7th day of August, 1905 and'on the 7th .day of August, 1905, upon the completion of said work and furnishing of said materials the defendant was indebted to the plaiptiff in said sum of $227.37 therefor/’ The Complaint also contains appropriate allegations, as ..to filing the lien and serving notice thereof; alleges that $80 ' lias been paid by the defendant, and demands the foreclosure of such lien and a personal judgment against defendant for ,the unpaid balance of $147.37, with interest.

• The contract as thus alleged was clearly an entire contract and according to its terms payment thereunder did not become due until. “ the completion of said work, which was on the 7th day of August, 1905.” The answer specifically denies completion. It, therefore," became necessary for the plaintiff to prove performance of the contract in order to establish his right to recover. .

At the trial the court for its information submitted certain questions to the jury. The answers of the jury to such questions were adopted by the court' and are embodied in the decision which constitutes the basis of the judgment. The facts as thus determined are that the plaintiff was employed by the defendant to do all the work and furnish all the material.in painting and papering required to be done by the defendant in her buildings and on her premises . and which work and materials were to be paid for upon the completion of said work; that “ the plaintiff did not substantially comply with his agreement to do all thq work, painting and papering required to be done by defendant,” and that the “ services were reasonably worth at the rate agreed upon, over and above the sum óf $80 admitted by the pleadings to have been paid thereon, the sum of $117.” The court determined as' a conclusion of law that plaintiff was not entitled to a foreclosure of his lien, but directed a personal judgment against the defendant for said sum of $117, with interest and costs.

■There seems to be some discrepancy between the contract as alleged in the complaint and the contract as found by the court. But such discrepancy is of no importance on this appeal because either the contract' as alleged or the contract as proved required substantial performance by plaintiff before he could recover. Plain- ' tiff not having performed his contract, it was error for the court to permit him to recover any amount thereunder.

Plaintiff urges that as the services and material were in fact reasonably worth the amount for which judgment- has been directed, the judgment should be sustained regardless of plaintiff’s failure to substantially perform his contract. There may be cases where because of the difficulty or impracticability of performing a contract according to its strict letter or for other special reasons a party should be permitted to recover on a quantum meruit notwithstanding a failure by him to wholly perform such contract. But this does not appear' to be such a case and the complaint is not framed on such theory. • ’

The judgment must be reversed and a new trial granted,, with" bosta to the appellant to abide the event.

All concurred.

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