
    John Charlton and Thomas Charlton, Respondents, v. George L. Rose, Appellant.
    
      Amendment on the trial conforming a pleading to the proofs — what objection must be made when the proofs are offered, to malee such amendment improper — the amendment should be written out — excessive verdict.
    
    Where, upon the trial of an action brought to recover upon a building contract, in which the complaint alleges full performance by the contractor, the plaintiffs, being unable to establish such performance, are permitted to show substantial performance and a waiver of certain conditions of the contract by the defendant, an objection made by the latter to the admission of such evidence as being “immaterial and incompetent,” but not stated to be upon the ground that the evidence does not tend to support the allegations of the pleadings, will not preclude the court from granting a motion made in behalf of the plaintiffs to conform their pleadings to the proofs.
    Where an amendment to a pleading is allowed on a trial the amendment should be written out and inserted in the proper place in the pleading to be amended.
    Where a contract requires the contractor to perform the work “in the most substantial and workmanlike manner and with the material best fitted for each and every purpose,” and the contractor admits on the trial that the work has not been so performed, a verdict for the full contract price is excessive.
    Appeal by the defendant, George L. Rose, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Niagara on the 30th day of September, 1896, upon tlie verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Arthur J. Baldwin, for the appellant.
    
      W. B. Simson, for the respondents.
   Green, J.:

On November 2, 1892, a contract was made between the defendant and Joseph L. Chamberlain, whereby tlie latter agreed to build for the defendant a house in Yonkers, N. Y., agreeably to certain drawings and specifications made by the defendant’s architect and signed by both parties to the contract. The house was to be completed on or about March 1, 1893, in a good, workmanlike and substantial manner, to the satisfaction and under tlie direction of the architect, to be evidenced by a writing, or certificate, under his hand. The contractor was to furnish and provide good and sufficient material as should be proper and sufficient for completing and finishing the carpenter work and other work of the building mentioned in the carpenter’s specifications. The owner agreed to pay therefor the sum of $4,670, in payments of specified amounts and times. It was also provided in the contract that in every case before payment was made, a certificate should be obtained and signed by the architect; that the contractor should furnish a satisfactory release before each payment, guaranteeing that all claims against him on the building had been satisfied, and that the statement should be sworn to before a notary public.

It was further provided by the contract that the owner, at any time during the erection of the building, might request any alteration, deviation in, addition to or omission from the contract, and that the same should in no way affect or make void the contract, but should be added to or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation.

The contractor erected the house. Payments were made at various, times, until, at or about the time when the contractor claimed to have completed the building in accordance with the contract, there remained but the sum of $72.35 unpaid upon the contract. During-the erection of the building, extra work was ordered by the owner, and the contractor performed such extra work to the amount, as he claims, of $303.41. No part of the amount charged for extra work was ever paid. After the completion of the extra work and after the completion, as claimed by the contractor, of the house, the latter assigned the contract and the claim for extra work thereunder and all interest in the same to these plaintiffs, who had furnished a large amount of the material used in the construction of the building. Thereafter this action was brought.

The plaintiffs in tlieir complaint allege the making of the contract and a full performance of the same on the part of the contractor; that there was a balance of $72.35 unpaid upon the said contract, and $303.41 for and on account of such extra work, and they demand judgment for the sum of $375.76, with interest. •

The defendant in his answer denies all the allegations of the complaint, saving and excepting the making of the contract, which he admits ; and alleges that he suffered damages to the extent of §600, by reason of the unskillful and unworkmanlike manner in which the-work had been performed by the contractor upon the building, and by reason of the non-fulfillment of the conditions and covenants contained in the contract to be performed on the part of the contractor, and demands a dismissal of the complaint.

Upon the trial of the action it became apparent to the plaintiffs that they could not substantiate the allegation in their complaint that the contract had been fully performed by the contractor, and thereupon the plaintiffs were permitted to give evidence tending to show a substantial performance of the contract and a waiver by the owner of certain conditions of the contract to be performed by the contractor. The defendant objected to such evidence as “ immaterial and incompetent.” The objection was overruled 1 and an exception was taken by the defendant. After the evidence was closed, a motion was made on behalf of the plaintiffs to conform the pleadings to the proof; this motion was granted under objection and exception of defendant. This the defendant alleges to be error. In support of his contention he cities numerous cases to the effect that: “ A motion after the close of the evidence to conform the pleadings to the proof can never be granted where the admission of the evidence was promptly objected to when offered upon the grounds that it did not tend to support the allegations of the pleadings."

This is the rule correctly stated ; but it does not assist the defendant for the reason that no objection was made by him that the evidence was inadmissible upon the ground that it did not tend to support the allegations of thepleadtings. There is no case that holds that the pleadings may not be conformed to the proof where the sole objection to the evidence is that it is incompetent and immaterial. In Uertz v. Manufacturing Co. (35 Hun, 172) in dealing with this question the learned court says: “ The objection interposed as incompetent and immaterial ’ is insufficient to raise the question ; ” and cites Gibson v. Stetzer (3 Hun, 539); Atkins v. Elwell (45 N. Y. 753). “ Objections to be available on appeal must point out

the particular reason why the evidence is inadmissible, unless it is inadmissible for any purpose.”

In order to raise and avail himself of this question, the defendant should have specifically stated as the ground of his objection to this class of evidence that ifc did not tend to support the allegations of the complaint. This the defendant failed to do, and the court properly ruled upon the question as presented, and would have been justified in granting the motion of the plaintiffs at the close of the evidence to conform the pleadings to the proofs if a formal amendment had been proposed. This was not done, and it is impossible to tell how or in what manner the complaint was amended. Vfhen an amendment to a pleading is granted on the trial it should be written out and directed to be inserted in the proper place in the pleading to be amended ; otherwise it is impossible for an appellate court to determine what effect it should be given.

It is further claimed by defendant that the verdict of the jury is for excessive damages, and contrary to the evidence.

By the terms of the contract and the specifications, which are made a part thereof, the contractor was to perform the work “ m the most substantial and workmanlike manner, and with material best fitted for each and every purpose.” The contractor admits that he has not fulfilled this condition of the contract. The evidence in the case tends to show that there has not been even a substantial compliance with this condition of the contract. The defendant established, by a preponderance of evidence, that he suffered damages to a considerable-extent by reason of the unskillful manner in which some of the work upon the house was performed, and by reason of imperfect and inferior material used in portions of the structure. The jury, however, rendered a verdict for the full amount claimed by the plaintiffs. The verdict is clearly contrary to the weight of evidence, and the damages, as fixed by the jury, are excessive.

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

All concurred, except Ward, J., not voting.

Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide the event.  