
    John Charlton et al., Pl'ffs, v. Cora I. Scoville et al., Def'ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Pleading—Amendment on trial.
    In an action brought to foreclose a mechanic’s lien, the complaint alleged that defendant notified plaintiff’s workmen to cease work, and ordered them off the premises. The answer admitted the allegation. On the trial plaintiff gave evidence in support of his allegation, and defendant evidence denying the same, and thereafter moved to amend his answer by denying the aforesaid allegation, which motion was granted. Held, that evidence on the subject having been given by plaintiff, it was within the court’s discretion to allow the amendment.
    3. Contract—Abandonment—Damage.
    Where a contractor partially and improperly constructs a building and then abandons his contract, without having been paid anything thereon, and the owner tears down the structure and rebuilds it properly, he cannot recover, as an item of damage, the cost of rebuilding to the point where it was abandoned, but only the expense of tearing down.
    3. Same.
    Where owners wrongly construing a building contract assumed to terminate it for improper work, the contractors have a right to treat the contract as at an end, and the owners’ claim for damages for the difference between the contract price and the amount paid by them for the completion of the work should not be allowed.
    Cross appeals from a judgment entered upon the decision of the Brie special term. And also from an order permitting the defendants to amend answer.
    
      George Wing, for pl’ffs; Leroy Parker, for def'ts.
   Haight, J.

This action was brought to foreclose a mechanic’s lien. On the 26th day of August, 1890, the plaintiffs entered into a contract in writing with the defendant Charles H. Scoville to furnish the material and construct a dwelling house upon the premises of the defendant Cora L Scoville, for the sum of $3,980. The work was to be done in a workmanlike manner, according to-the plans and specifications attached to the contract, and under the direction and to the satisfaction of F. William Fisher, an architect. Charles II. Scoville was the husband of Cora I. Scoville and he entered into the contract with her knowledge and consent and for her benefit. The plaintiffs sub-let the carpenter work to another person, who commenced work upon the construction of the building on the 22nd day of September, and continued work thereon until the 3rd day of October, at which time he ceased work upon the premises, leaving the building unfinished. Subsequently this action was brought.

The trial court found as facts, that the building, as far as it had progressed, had not been constructed in accordance with the provisions of the contract; that improper materials had been furnished and that the work had not been performed in a workmanlike manner. That on the 30th day of September, notice was given to the plaintiffs to remove all labor and materials condemned by the architect and to provide materials called for in the specifications on or before the 4th day of October at nine o’clock A. M„ That the plaintiffs expressed a willingness to remedy the defects, and through their employes did remedy certain defects, but not all. That on the 3rd day of October they abandoned the work. That, thereupon the defendants took possession of the building, hired the same 'torn down at an expense of $40.50, and re-constructed the same to the point where the building was abandoned, at an expense of $123.50, using therefor the materials of the plaintiffs that were in the building and left upon the grounds, of the value of $318, and ordered judgment for the sum of $194.50, being the value of the materials used in the construction, $318, less the cost of re-building the same, $123.50.

This judgment was ordered upon the theory that the defendants had abandoned the contract on their part after the plaintiffs had committed a breach of the contract on their part. That the defendants, in using the plaintiffs’ material in the new structure, were obliged to pay therefor, less the sum of $123.50, which the defendants had suffered as damages in reconstructing the building to the point where it was abandoned by the plaintiffs.

The complaint alleged that on the 2d day of October, 1890, the defendants, without any just cause for so doing, notified the plaintiffs’ workmen to cease work upon the house and ordered them off the premises, forbidding them coming again upon the land, and that no work had been done or material furnished by the plaintiffs since.

The answer admitted that on or about the 2d day of October, 1890, the defendant, Charles H. Scoville, notified the plaintiffs and their workmen to cease work upon the said house and that the plaintiffs have done no work and furnished no material since that time. But they deny that he so notified the plaintiffs and their workmen without just cause. It, therefore, stood admitted upon the pleadings that the plaintiffs and their workmen were ordered to cease work upon the house by the defendants, and the issue left to be tried in reference thereto was whether such order was justified.

Upon the trial the defendants were permitted to give evidence that the plaintiffs and their workmen were not ordered to cease work upon the house and were not ordered off the premises, but on the contrary that they voluntarily abandoned the work. This evidence was taken under the objection that it contradicts the admissions in the answer. The court, however, admitted the same, remarking, “ If it turns out they are precluded by the pleadings that will end it” No exception was taken to the ruling. After the evidence was closed an adjournment was taken for a number of days, at which time the case was summed up by the counsel for the respective parties.

After the arguments had closed the defendants’ counsel asked leave to amend his answer so as to deny the allegations in the complaint “ that on the 2d day of October, 1890, the defendants notified the plaintiffs’ workmen to cease work upon the said house, and ordered them off the premises, and forbid their again coming upon the lands described in the complaint.” This was objected, to by the plaintiffs’ counsel, upon the ground that the evidence had been closed for two weeks, and that the plaintiffs had relied upon the admissions in the answer of the defendants, and if the answer was amended as requested there was no opportunity to prove the facts as alleged in the complaint. The court reserved its decision, but, in disposing of the case, it allowed the amendment of the answer and found as a fact that the building was abandoned by the plaintiffs, and refused to find the plaintiffs’ request that the defendants notified the plaintiffs’ workmen to cease work upon the house, and ordered them off the premises.

There would be just cause for complaint on account of these rulings, were it not for the fact that the plaintiffs had first opened the door and given evidence in support of their allegation. Evidence upon this subject was given as a part of the plaintiffs’ affirmative case, and also upon the rebuttal. The question having thus been tried out, it was within the discretion of the trial court to permit the answer to be amended so as to conform to the evidence given.

As we have seen, the trial court found that the plaintiffs ceased work upon the house and contract, and by this act they forfeited their right to recover any of the instalments under the contract thereafter to become payable. The building, as far as it had progressed, became the defendants'. They had, however, paid nothing thereon, and had, consequently, suffered no damages, unless, as it is claimed, it was so defectively constructed as to make it necessary that it should be torn down. If so, it was but an obstruction upon their premises, which they had a right to tear down, move away, or dispose of as they saw fit. It was tom down at an expense of $40.50.

The building was reconstructed according to the original plans and specifications. It cost $123.50 to reconstruct it to the point where it was abandoned by the plaintiffs. This the trial court found was a proper item of damages to be deducted from the plaintiffs’ claim. We are at a loss to understand upon what theory this item can be allowed. For, as we have seen, the defendants had paid nothing upon the building, and had suffered no damages further than the expense of tearing down the defective structure. We are aware of no rule that would require the plaintiffs to rebuild the building to that point. The value of the plaintiffs’ material upon the premises, that was used by the defendants in the new structure, was $318. From this sum there should be deducted the expense of tearing down the building, $40.50, and the plaintiffs should have recovered a judgment for the balance.

The plaintiffs were awarded judgment upon the theory that the defendants had abandoned the contract on their part. Their right to recover cannot be maintained urdess this theory is supported by the evidence. And this brings us to a consideration of the defendants’ appeal.

Section 4 of the contract provides that “ the contractors shall, within twenty-four hours after receiving written notice from the architect to that effect, proceed and remove from the grounds or building all materials condemned by him, whether worked or unworked, and to take down all portions of the work which the architect shall condemn as unsound or improper, or in any way failing to conform to the drawings and specifications, and to the conditions of this contract. The contractors shall cover, protect and exercise due diligence to secure the work from injury, and all damage happening to the same by their neglect shall be made good by them.”

Section 12 provides, “ Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of - materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements upon their part, herein contained such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days written notice to the contractors, to provide any such labor or materials and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract. And if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall be at liberty to terminate the employment of the contractors for the said work, and to enter upon the premises and take possession of the materials thereon, and to employ another person or persons to finish the work and to provide the materials therefor. In case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractors, but if such expense shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The expense incurred by the owner, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.”

On the 30th day of September, the architect certified that the work, labor and material upon the house was not being done in accordance with the plans and specifications. Thereupon the defendant, Charles H. Scoville, served upon the plaintiffs the following notice:

“ I herewith give you three days written notice, to expire October 4th, at 9 A. M., to remove the labor and materials condemned by the architect, Mr. F. William Fisher, and to provide such materials as are called for in the specifications.
“ I also notify you that I shall make use of the power given me in part twelve in the contract to terminate the employment of the contractor who shall do said carpenter work.”

And at the same time took from the plaintiffs’ possession the plans and specifications.

It will be observed that the notice requires the plaintiffs to remove the materials condemned and to provide such material as is called for by the specifications. And in the same connection notice is given that they terminate the employment of the contractors under the power given them under part twelve. So by the notice the plaintiffs’ right to proceed in the construction of the building was terminated, and yet they were required to provide the materials called for in the specifications. There appears to have been some confusion in construing § 12 of the contract. The language used therein might have been made more clear and specific. But we think the meaning is apparent. It is, in substance, that should the contractors fail to perform in any particular the provisions of the contract, and the architect should so certify, the defendants might give them three days notice to perform, and in case of their refusal, neglebt or failure to perform within the time specified, then the defendants would be at liberty to terminate the employment of the contractors and to enter upon the premises and take possession of the materials thereon, employ other persons and complete the building themselves, etc.

The defendants requested the trial court to find that, “The defendant, Charles H. Scoville, took possession of the said building and material and employed other persons to take the building down to the foundation at an expense of $40.50, and rebuild the same to the point where the plaintiffs left it, and to complete the same according to the original plans and specifications at an expense of $4480. for the carpenter work and materials, and $150 for sheet metal, tin and galvanized work, making a total expense to the defendants of $690.50 over and above the price agreed to be paid the plaintiffs." This finding was refused. The request appears to be in accordance with the undisputed evidence, and might properly have been found. This would entitle the defendants to recover their counterclaim, were it not for the fact that they had terminated the contract by their notice of September 30th, and by their taking from the plaintiffs the plans and specifications.

True, the plaintiffs abandoned the contract on the 3d day of October, as found by the trial court, but this was after the notice had been served upon them by the defendants to which we have referred. The defendants had no right to then terminate the employment of the plaintiffs. This, as we have seen, could not be done until after October 4th, at 9 A. M., and not then unless the architect should certify that the plaintiffs had failed to correct the defects and perform the contract. But the defendants having-assumed to terminate the employment on the 30th, the plaintiffs had the right to accept the situation thus presented and themselves treat the contract as at an end.

In view of the situation thus presented, we think that the defendants’ claim for damages of the difference between the contract price and the amount paid by them for the completion of the work should not be allowed.

The order appealed from should be affirmed, and the judgment should be modified by awarding to the plaintiffs the sum of $318, less $40.50, amounting to $277.50, with interest on that sum from the 13th day of November, 1891, and, as so modified, affirmed, with the costs of this appeal to the plaintiffs.

Dwight, P. J., Macomber and Lewis, JJ., concur.  