
    See and another v. Partridge.
    The plaintiffs by their complaint demanded judgment as follows: 1. For a certain sum alleged to be the balance due to then) upon u building contract between them and the defendant 2. For another pum for extra work and materials, 8. For another sum as damages sustained by them by reason of having been hindered and delayed by the defendant in the completion of this work. And lastly i That a certain award, made by an arbitrator mutually chosen, in relation to certain disputes growing out of the contract* should be get aside aa obtained by fraud or undue influence.
    
      Held, that as equitable and legal relief may now be sought in the same action, and all the causes of action set forth in the complaint grew out of the same transaction, they were properly united.
    
      Held, that as the action was not for the recovery of money only, it was properly heard at special term without a jury, and that the court, although denying the equitable relief demanded, had power to grant any other relief epmietent with the ease made by the complaint and embraced within the issues.
    (Before Oakley, Ch. J., and Emmet, J.)
    November 9;
    
    December 10, 1853.
    
      Meld, therefore, that although the court at special term held the award to ha binding on the parties, its judgment in favor of the plaintiffs upon the other causes of action set forth in the complaint, was valid-judgment affirmed, with costs,
    Appeal by defendant from a judgment at special term, in favor of-the plaintiff» for $1,228,10, with costs.
    The action was tried before Bosworth, J,, at a special term, on the 28th May, 1853,
    The nature of the controversy, the questions raised and decided, and the exceptions taken, sufficiently appear in the statement of facts found, and in the opinion delivered by him.
    The judgment of the court, at special term, embracing the facts as found, is as follows;
    On the 6th February, the plaintiffs, of the one part, who were carpenters and partners under the partnership name of See & Brown, entered into a written contract with the defendant, of the other part, which was duly executed by all of the said parties, which contract was of the tenor and effect that is alleged in the complaint to have been, and a true copy thereof is annexed to the answer of the defendant in this action.
    That the plaintiffs fully executed the contract on their part, and obtained a certificate from the said architect, in the form and to the effect provided in and by the said contract, and furnished satisfactory evidence to the defendant that all the materials furnished and work done had been paid for by the plaintiffs, During the progress of the said buildings the defendant requested, and the plaintiffs, in pursuance of such request, made various alterations, deviations, additions, and omissions from the contract.
    That on the completion of the said buildings the sum of $1,850 of the said contract price was in arrear and unpaid by the defendant to the plaintiffs, and that no part of the same has been since paid by the defendant.
    That a dispute arose between the parties respecting the true value of said extra work, and also of the works omitted.
    That thereupon the parties entered into a written agreement, signed by them, and dated Hovember 8,1852, by which they agreed to abide the decision of John Millington, architect, as to the deductions to be made, or extras to be added, in settlement of the said contract.
    The architect, under the said agreement, entered upon an examination and consideration of the matters so submitted, and on the 10th of Hovember, 1852, made his decision in writing, and delivered it to the parties, by which he decided that there should be deducted from the contract price and allowed to the defendant by reason of work omitted and called for by the contract, the sum of $1,428. That there should be credited and allowed to the plaintiffs for extra work done by them, not called for by the contract, the sum of $712. That after crediting the defendant with the said sum of $1,428, and charging him with the said sum of $712, there was actually due and owing from the defendant to the plaintiffs, under the said contract, on the 10th of Hovember, 1852, the sum of $1,134, no part of which has been paid, which with the interest thereon to the date hereof, amounts to the sum of $1,178.10.
    That the said Millington did not appoint any time and place for the parties to appear before him, and be heard with respect to the matters so submitted, and neither of them did appear before or was heard by or spoke to him in respect thereto.
    That he was personally acquainted with and knew of the omissions and extra work to which the submission related, and all the parties verbally agreed and declared to him, at the time of the submission, that neither of them should appear before him or speak to him in relation thereto until after his decision should be made and published.
    Tire decision has not been acquiesced in by the plaintiffs, or acted upon by them, since it was made and announced.
    That said decision was made bond fide without any misrepresentations or any representations whatever being made, or any undue influence exercised, or attempted to be exercised, by the defendant. That the mason work done in the erection of said buildings was done by the defendant himself, and was so unreasonably delayed by him, that for that cause alone the plaintiffs were not only prevented from completing the bu""" within the time specified in thé contract, but were delayed several months thereafter in the completion thereof, and subjected to damages resulting from the loss of time of themselves and their servants, and the disadvantage at which they labored while actually working in the erection of said building, and resulting solely from the delay of the defendant in doing such mason work.
    That the damages resulting to the plaintiffs from that cause, amount to the sum of $50, which sum is included in and forms part of the amount hereinafter decided to be recoverable from the defendant by the plaintiffs.
    The plaintiffs objected to the admission of evidence to prove that it was verbally agreed between the parties that neither of them shóuld appear before and be heard by the arbitrator, on the matters so submitted, and excepted to the decision of the court admitting such evidence.
    The defendant objected to any proof of damages resulting from a delay in doing the mason’s work, on the grounds, fii'st, that the defendant had made no agreement in relation thereto ; and second, that this was an action merely to set aside the said award, and if the plaintiffs failed to obtaih such relief, he could not have any relief in this action and the complaint must be dismissed. The court overruled each objection, and the defendant excepted to such decision.
    On the facts so found the court decide that the said award was valid.
    That the plaintiffs might have any relief in this action con- • sistent with the case made by the complaint and embraced within the issues.
    That the plaintiffs were entitled to a judgment in this action for the sum of $1,228.10, the aggregate of the said two sums of $1,178.10 and of $50.
    That the plaintiffs must pay to the defendant his costs of this action, and that a judgment be entered accordingly.
    In support of this judgment the following opinion was deli-,, vered.
    Bosworth, J.—The defendant insists that this action is one solely for the purpose of setting aside an award, and that failing in obtaining that relief, the complaint must be dismissed.
    
      In this I think he is clearly -wrong. •
    The complaint sets out the contract, performance of it by the plaintiffs, and that $1,850 of the contract price was in arrear and unpaid.
    It alleges a breach of duty on the part of the defendant, resulting from his not doing the mason work, so that they could complete their contract by the time it required them to do, and by which they were subjected to losses, and claims damages for that cause to the amount of $500.
    It alleges the submission of some of the matters in controversy to an arbitrator, his award, and seeks to have it declared void, by reason of fraud and undue influence.
    It also alleges the performance of extra services, and the furnishing of extra materials, and claims to recover for that $1,615.70.
    It prays for judgment for $3,965.70, the aggregate of the sums claimed.
    The Code allows the plaintiffs to unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal, or equitable, or both, where they all arise out of the same transaction, or transactions connected with the same subject of action.
    The causes here united embrace such as were heretofore denominated legal and equitable. They are all connected with the same subject of action. They all arise out of the same transaction.
    This provision was designed to enable parties to litigate, and have determined in a single action, every claim to relief, connected with the same subject of action, whether the relief sought was legal, or equitable, or both.
    The provision as to the judgment that may be entered, is ample and broad enough to enable the courts to execute this design.
    While § 275 provides, that if there be no answer, the relief granted to the plaintiffs, cannot exceed that demanded in his complaint, yet in every other case, where an answer has been interposed, no matter what relief may have been prayed, “ the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.”
    
      It is clearly consistent with the case made by the complaint, to give the plaintiffs a judgment for such sum as is due to them if the award is held conclusive, or such sum as may be due, if it is avoided and annulled.
    The only question about which I have any doubt, relates to the claim for damages resulting from unreasonable delay in doing the mason work: the defendant has not stipulated in respect to this in the contract.
    Yet he did the mason work himself, the plaintiffs were unconditionally bound to do the carpenter’s work within a specified time. To accomplish this, they must not only provide the materials but employ the necessary hands. It was the legal duty of the defendant to keep the mason’s work in such a state of forwardness, as to enable the plaintiffs to perform their contract. For the damages resulting from a clear breach of this duty he should be held liable.
    There is much reason to suppose the damages were much more than the sum assessed. But the proof, under the ruling of the court, was slight and not specific, and in assessing them, no liberal conjectures in behalf of the plaintiffs can be indulged : they must be content with such as they have clearly proved.
    The plaintiffs having recovered sufficient damages to carry costs, if it was an action merely and nakedly for the recovery of money and seeking no other relief, and having failed to obtain the equitable relief sought or any part of it, it might seem a fair case, for subjecting each party to the payment of his own costs.
    There is much reason to apprehend that the defendant has lost a payment of $207 and some cents, for which he held a receipt, from his confident reliance on the proposition that if the plaintiffs failed to set aside the award they would have no relief, but then’ complaint must be dismissed.
    notwithstanding the defendant declined the offer made him by the court, to allow the cause to be adjourned to the next day to enable him to prove the receipt, I cannot resist the impression, that in the exercise of the discretion conferred by the Code, I should direct the plaintiffs to pay the defendant’s costs.
    
      — Leonard, for defendant and appellant,
    now insisted that the judgment at special term ought to be reversed, and a judgment ordered for the defendant, dismissing the complaint, with costs of the action and of the appeal; and argued as follows.
    I. Evidence of damages sustained by See and Brown, in consequence of the mason work not being done by the defendant as soon as they desired or expected, was inadmissible, and the exception in that respect is well taken. 1. Ho provision is contained in the contract requiring the defendant to finish the mason work at any specific period. 2. The defendant was entitled to a trial by jury on that issue. The issue relating to the validity of the award is the only one in this action which a judge, sitting without a jury, could properly try. (§§ 253,254, amended code.) 3. This action is not on the contract, nor is it on the award. This claim for damages does not arise out of the same transaction, and is improperly j oined. (§ 167, amended code.) 4. The evidence of damage was too indefinite and uncertain to justify any report in favor of the plaintiffs in that respect.
    II. The plaintiffs having brought their action to disaffirm the award, on the ground of fraud, &c., the judge was not authorized to render judgment in favor of the plaintiffs, as upon a complaint brought to recover upon an award acknowledged to be valid and binding on the parties. 1. The complaint asks to set aside the award for fraud, &c., and to recover about $3,900 under a state of facts, showing that the award is for a sum less than that for which in plain justice and equity it ought to have been made. 2. The judgment rendered required a reconstruction and amendment of the complaint, changing the whole nature of the action. (§§ 171,173, 275, amended code; Marquat v. Marquat & wife, 7 Howard’s Pr. R. 417; Alger v. Scovell, 5 id. 131.) 3. The course pursued by the court was in violation of the former rules and practice, and operated a surprise upon the defendant. It was the trial of a new and different issue from that made by the pleadings. Upon such an alteration or amendment of the complaint as is necessarily involved in the judgment rendered, the defendant was entitled to a continuance to another term, at the least, in order to procure his witnesses, and prepare for trial, or to acquiesce in the amended claim, if he thought proper.
    
      ■-Nash, for plaintiff, contra.
    
    I. The questions disposed of by the court were all properly put in issue by the pleadings, and the court was bound in law to decide all these questions in this action. 1. The plaintiff may unite in the same complaint several causes of action, legal or equitable, or both, where they all arise out of the same transaction, or out of contract, express or implied. (Code, § 167.) 2. By section 275, the court may grant—where an answer has been put in—any relief consistent with the case made and embraced within the issue. (Code, §§ 159, 275.) 4. The 167th section of the Code was revised and amended to meet certain decisions in the Supreme Court, relating to this union of legal and equitable actions. (Otis v. Sill, 8 Barb. Sup. C. R. 102.) 4. Prior to the introduction of the Code it was not necessary to file a bill, or make a motion for the purpose of getting rid of an award. (Butler v. The Mayor of the City of New York, 7 Hill, 331.)
    II. The defendant bound the plaintiffs in express terms in the contract to finish his work by a given period. And although the contract is silent as to the defendant’s duty in this respect, yet the law implies he shall not interpose any unreasonable delay to the plaintiffs’ completing by the time specified. (2 Blackstone’s Com. 443.) 1. It is a general principle applicable to all contracts that, whatever may be fairly implied from its terms, is, in judgment of law, contained in it. (Rogers v. Kneeland, 10 Wend. 218.)
    III. The defendant has committed a breach of this part of the contract to the plaintiffs’ damage, and he should be held liable to pay. 1. The defendant claims in his answer to deduct two hundred dollars from the contract price, as damages resulting to him by reason, as he alleges, of the failure of the plaintiffs to complete the work by the time fixed upon. ■ 2. It turned out on the trial that the plaintiffs had sustained damages by being prevented from fulfilling at the time by the defendant. The damages assessed were clearly proven.
    
      TV. The decision of the court should be affirmed, with costs.
   By the Court.

We think that all the questions that have been argued before us were rightly decided by the judge at special term ; and we deem it unnecessary to state any reasons for our opinion, in addition to those which he has given. He might, with entire propriety, have left the parties to bear separately their own costs, but the mode in which he has exercised his discretion in relation to the costs, is not an error, if an error at all, of which the defendant has any right to complain. The judgment is, therefore, affirmed with costs.  