
    Henry Oberlies, Pl’ff, v. Balthasar Bulinger, Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    Oontbact—Pebeobmance.
    A building contract provided that the work should be done in a good, workmanlike manner, and agreeably to the drawings and specifications which were made a part of the contract, the last payment to be made when the work was accepted in accordance with the architect’s certificate. The final certificate stated that the work was completed in accordance with the plans, etc., except that the roof of the addition was deficient in height about five inches. Held, that, in the absence of proof of acceptance or waiver, this constituted a failure to perform and plaintiff could not recover.
    3. Same.
    The owner should be permitted to say how high his house shall be, and one who contracts to build it at that height must be held to his agreement.
    Motion by the plaintiff for a new trial upon exceptions ordered to be heard at the general term, in the first instance after a nonsuit at the Monroe circuit in January, 1890.
    
      Abraham Benedict, for pl’ff; Walter S. Hubbell, for def’t.
   Macomber, J.

This action is brought to recover a balance of §1,223.75 alleged to be due and unpaid upon a building contract entered into between the plaintiff and the defendant on the 2d day of June, 1887, by which the plaintiff was to perform the carpenter and joiner work upon a two story frame dwelling-house to be erected for the defendant in the city of Rochester, in a good,' workmanlike, substantial manner, and agreeably to the drawings and specifications made by the architect, and to have the same completed on or before the first day of November of that year, for which he was to receive from the defendant the sum of $3,050, eighty per cent, of which was to be paid from time to time as the work progressed, and the balance when the whole contract had been completed and the work accepted in accordance with the architect’s certificates.

By the terms of the written agreement, the drawings and specifications made by the architect for the guidance of the contractor were made a part thereof so that any work shown on the drawings which were not mentioned in the specifications, or vice versa, was to be performed the same as though particularly specified, without any extra charge.

The defendant voluntarily paid the plaintiff from time to time on the contract as often as money was demanded, but without any certificate from the architect, until the final demand, which was refused.

The plaintiff, on the 3d day of December, 1887, claiming that he had performed his contract, demanded a payment of the balance unpaid from the defendant and presented to him the following certificate of the architect: “ This will certify that the carpenter and joiner work of your house on Alexander street under contract with Henry Oberlies has been completed in accordance with the plans and specifications, with the exception of the roof of addition which is deficient in height about five inches.”

The statement contained in this certificate that the rear part of the house was deficient by five inches in height required by the contract, specifications and drawings, is shown to be unqualifiedly true; indeed there is no evidence denying the fact.

The plaintiff in carrying out his agreement ignored, without permission of the architect or of the owner, the obligations of his contract to construct the building of a certain height. The defendant has, by no act or word, accepted such partial performance nor waived this part of the contract.

The effect of this departure from the agreement is to make the attic inside at the ridge five inches lower than the height called for. This is not a substantial performance of the agreement, but a failure to perform it. When performance is a condition of payment, as in this case, the former must be shown to entitle the party to recover, unless such want of performance has been waived or the party released. Builders, like other parties, should be required to perform their contracts in order to be entitled to payment, where the employer’s agreement is to pay only upon condition of such performance. This by no means forfeits a 3’ecovery where the defects or omissions are inadvertent, unimportant and readily measured by pecuniary compensation. ' The owner should be permitted to say how high his house shall be, and the party having contracted to build it at that height must be held to his agreement; otherwise it is idle for persons to go to the trouble of making written agreements. Smith v. Brady, 17 N. Y., 173 ; Glacius v. Black, 50 id., 145.

Motion for a new trial denied and judgment ordered for the defendant upon the non-suit, with costs.

Dwight, P. J. and Corlett, J., concur.  