
    George F. Hoffman, Respondent, v. Frances E. Rickard and Others, Appellants.
    Fourth Department,
    July 9, 1912.
    Contract —building contract—failure to make floors of building level — burden of proof.
    A contractor, suing to recover a balance alleged to be due for the construction of a house built under specifications which required level floors to be furnished, is under the burden of shoving that a sinking of the floors, causing some of them to be three-quarters of an inch out of ' the level, was not due to any failure of performance on his part or to his failure to put in the full number of supporting columns called for by the contract.
    The contractor, having' failed to sustain said burden of proof, should be charged with the expense of making the floors level so as to conform to the contract.
    Appeal by the defendants, Frances E. Rickard and others, from a judgment of the County Court of Monroe county in favor of the plaintiff for $582.88 damages and costs, entered in the office of the clerk of said county on the 17th day of July, 1911, after a trial before the court without a jury.
    The action was brought to recover a balance unpaid upon a written contract, by which plaintiff, as contractor, undertook to erect for defendants, as owners, a dwelling house upon a lot owned by defendants on Barrington street in the city of Rochester, and for certain extra work and materials. The contract price was $6,300. Defendants’ answer alleged failure on the part of plaintiff to substantially perform the contract, and numerous counterclaims for damages arising from defective work and materials. Six thousand dollars of the contract price had been paid before the action was begun. By the decision below there was adjudged to be due plaintiff $300 for the balance of the contract price, $389.55 for extra work and materials and $24 for premium paid on fire insurance policy, and against these amounts there was allowed to defendants by way of counterclaim $273.40 for omissions, changes and imperfect workmanship and material and $18 on account of the change of gas grate and mantel, leaving a balance in favor of plaintiff, including interest, of $456.64, for which judgment was directed in favor of plaintiff.
    
      C. D. Kiehel, for the appellants.
    
      J. Stuart Page, for the respondent.
   Foote, J.:

It appeared upon the trial that the floors of this house, after it was completed, were not upon a level. They were out of level to the extent of three-fourths of an inch in some of the rooms. It appeared that these floors had settled. The plans and specifications called for level floors. Expért witnesses testified as to the expense of remedying this defect. Plaintiff’s expert placed the expense at. $150, while defendants’ expert placed it at $1,120. Nothing was allowed by the learned special county judge to defendants for this expense, for the reason, as stated in his opinion, that none of the witnesses was ' able to give the cause of the settling of these floors, and that it would be mere speculation for the court. to hold that the contractor was responsible for it.

It was proved upon the trial and found by the court that plaintiff, in erecting this dwelling house without defendants’ consent, omitted to put in the basement four of the ten columns or pillars to support the beams and joists of the building, which the specifications required; also that the footings under the columns put in were only eight inches deep, except one which.was fourteen inches, while the specifications required that the footings should be sixteen inches; also that the land, upon which the house was erected was made ground, which necessitated extra depth for the footings. Plaintiff excused the omission of these four columns by saying that he substituted larger beams, two by twelve, in place of a two by ten, as specified, and thus, in his opinion, gained as much additional support for the house as was lost by the absence of - those four columns. He expressed the opinion that his construction was as good in the "way of strength and support to the house as the other. There is a conflict in the evidence as to whether the beams put in were, in fact, two by twelve. One witness who measured them testifies that they are only two by ten. The court has made no express finding upon that subject. The settling of these floors was the most serious defect complained of by defendants. The plans and specifications called for level floors and .they were not furnished. We think the burden was upon plaintiff to show that such defect was not due to any failure on his part to perform his contract according to its terms. It does not appear, and was not found by the court, that the settling of these floors was not due directly to the failure of plaintiff to put in the four additional supporting columns and the proper footings which the specifications required for the other columns. These were deviations from the contract which defendants did not consent to, and their natural tendency would be to furnish less support under these floors. We think the burden was upon plaintiff to show that the settling of the floors was not caused by either the omission of these columns or any other defect in his workmanship. For this reason, we think on the evidence in the case and the findings made that plaintiff should have been charged with the expense of making these .floors level to conform to his contract.

As a new trial will be necessary and additional evidence may be given, we do not'now pass upon the question as to whether if the settling of the ‘floors is held to be due- to the failure of plaintiff to properly perform his contract, the case would then fall within the rule of substantial performance with compensation for unsubstantial omissions. Nor do we pass upon the other grounds of error alleged.

The judgment appealed from should be reversed, with costs to the appellants to abide the event, and a new trial ordered in the County Court.

All concurred.

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