
    FARLEY v. BROWNING.
    
      N. Y. Common Pleas, General Term ;
    
    
      January, 1885.
    Action for work and materials.—Pleading ; complaint on SPECIAL CONTRACT ; EVIDENCE ADMISSIBLE UNDER ANSWER.
    Although a party who has performed a special contract for work and materials may recover the stipulated price due thereon without setting up the. contract, provided it has been fully performed, so that only the duty to pay the money remains, yet he must prove peiformance of the contract, whether he sues in that form of action or on the special contract.
    Where he sues without setting up the special contract, an admission in the answer, that he had done work and furnished materials (there being a denial of value), does not excuse him from proving that he had done all the work required by the special contract produced in evidence, nor preclude the defendant from giving evidence to the contrary.
    Appeal from a judgment for the plaintiff, entered on the verdict of a jury at the special term, and from an order striking out defendant’s counter-claim.
    The action was brought by Patrick Farley against William H. Browning, in the seventh district court of New York city, and was removed under the statute to the court of common pleas.
    The complaint alleged:
    “ I. That heretofore and on and between February 24, 1882, and October 31, 1882, the plaintiff performed certain work, labor and services for the defendant, in the digging and excavating of certain trenches on the north side of Sixty-third street, between Fourth and Madison avenues, in the city of New York, for the purpose of erecting certain houses thereon, and also furnished, at defendant’s request, materials, to wit: building stone, to be used in the erection of said houses.
    “II. That said materials so furnished, and labor and. services performed, were reasonably worth the sum of $2,200, which the defendant promised and agreed to pay therefor.
    “ III. That, defendant has paid on-account thereof, the sum of $2,000, leaving a balance due and owing plaintiff from defendant of the sum of $200, no part of which has been paid, though duly demanded.”
    The answer of defendant set forth:
    ‘11. He admits the 1st allegation or paragraph of said complaint as therein alleged.
    *‘11. He denies the 2d allegation or paragraph in said complaint.
    “ III. He denies the 3d allegation or paragraph of said complaint.”
    The fourth paragraph of the answer also pleaded for a separate defense, that plaintiff had entered into a written contract with defendant,- annexed to the answer, and that he had failed to perform it, and made a counter-claim therefor. The matter pleaded in the fourth paragraph, “and constituting counter-claims against the plaintiff,” was stricken out on motion, on the ground that defendant, could not,'at least without leave of court, interpose new defenses to those interposed- in the district court.
    The jury found for the plaintiff, and from the judgment entered thereon defendant appealed.
    
      J. Q. Julius Langbein (Langbein Bros. & Langbein, attorneys), for defendant, appellant.
    
      Edward P. Wilder, for plaintiff, respondent.
   Van Hoesen, J.

The error in the charge of the judge was caused by a misconstruction of the pleadings. The answer does not admit that the work for which a special contract had been made had been duly performed; it merely admits that the plaintiff had . done work and furnished materials for, and at the request of the defendant. The judge erroneously construed the answer as making an admission that the plaintiff had done all the work, that the written contract that was produced in evidence (though it had not been mentioned in the complaint), required him to do. In consequence of this misconstruction of the pleadings, the judge fell into the error of instructing the jury, “ that the question to be decided is, not whether the work was done or not, but whether a promise was made. If the jury find a promise was made, the plaintiff is entitled to a verdict.”

In point of fact, the chief question in the case was, has the plaintiff fully performed the work mentioned in the written contract % The plaintiff declares on one of the common counts in assumpsit. This he had a right to do, provided that he had fully completed the special contract. The rule is that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, where the contract has been completely executed, so that only a duty to pay the money remains. It is essential that the plaintiff should prove that the special contract has been performed upon his part (Jewell v. Schroeppel, 4 Cow. 566 ; Farron v. Sherwood, 17 N. Y. 227; Hosley v. Black, 28 N. Y. 438; Hurst v. Litchfield, 39 N. Y. 377 ; Higgins v. Newton, &c. R. R. Co., 66 N. Y. 605).

The plaintiff undertook to prove performance, and he offered evidence for that purpose. The defendant then offered to prove that the work had never been finished. The court ruled that he could not be allowed to show that the contract had not been performed, but, notwithstanding that ruling, the defendant was afterwards permitted to give a good deal of testimony to show that the plaintiff had failed to do the work that the contract had provided for. It might perhaps be said that the action of the court in allowing the defendant to prove that the contract had not been performed, obviated the exception taken to the ruling that such proof could not be admitted, but there is still the exception taken to the instruction to the jury, that it was of no consequence whether the contract had been performed or not. This instruction was, as I have said, erroneous, and because of it, judgment must be reversed.

In his note to Cutter v. Powell (2 Smith's Lead. Cas.), Mr. Wallace says, “ where there has been a special contract, the whole of which has been executed on the part of the plaintiff, and the time of payment on the other side is passed, a suit may be brought on the special contract, or a general assumpsit may be maintained ; and in the last case the measure of damages will be the recompense fixed by the special contract. If however, the special contract be open, and there be no fault or omission om the part of the defendant indebitatus assumpsit will not lie.”

The plaintiff cannot free himself from the obligation of proving his case, by changing the form of his pleading. *If he sues upon the special contract, he must prove performance, and so he must do, if he resorts to an indebitatus assumpsit.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Daly, C. J., and Labbemoee, J., concur.

Judgment reversed.  