
    Owes Toher, Respondent, v. John V. Schaefer, Jr., Impleaded, Etc., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    When performance by plaintiff prerequisite to recovery on contract — Form of action when performance prevented by defendant.
    Under a contract to do “ all the necessary excavating ” for a building, “ as per plans and specifications ”, the earth and rock to be excavated at a stated price respe,ctively, plaintiff, in an action on such contract, cannot recover when it is shown that some of the rock was- not excavated by him. Performance on plaintiff’s part is a condition precedent to recovery. The price per yard, stated in the contract, is a mere measure of the sum due on performance.
    
      Semble, if plaintiff’s performance was prevented by defendant he should have sued for damages for breach of contract or on a quantum meruit for the work done.
    Appeal by the defendant from a judgment for the plaintiff rendered in the Municipal Court of the city of Hew York, second district, borough of The Bronx. Action by a subcontractor against the contractor to recover the compensation agreed upon under a contract calling for the removal of earth and rock necessary to the erection of a library building.
    Charles S. Foote, for appellant.
    Henry K Davis, for respondent.
   Bischoff, J.

The complaint was framed as in an action to foreclose a mechanic’s lien claimed by the plaintiff upon a fund to which it was alleged the defendant Schaefer was entitled under a building contract with the city of New York. Upon the trial, however, the claim of a lien was. abandoned, and the action proceeded as one to recover the agreed compensation for certain work, labor and services which the plaintiff claimed to have performed under a contract with the defendant Schaefer. The latter denied the performance of the work and interposed a counterclaim for damages alleged to have resulted from the plaintiff’s failure to perform. The court below gave judgment for the plaintiff.

Pursuant to the terms of the contract the plaintiff undertook to do “ all the necessary excavating for Carnegie Library No. 5, as per plans and specifications,” and the defendant agreed to pay therefor “ at the rate of ” forty cents per cubic yard of earth and one dollar and sixty cents per cubic yard of rock removed. The plaintiff removed 438 cubic yards of earth, concededly all there was to be removed, and excavated 135 cubic yards of rock, and in this action claimed payment at the contract price for the work actually done. Upon the trial it appeared that the entire quantity of rock to be removed was 1,144 yards, of which, as stated, the plaintiff had removed but 135 cubic yards.

The plaintiff should have been nonsuited for failure of proof. The action proceeded upon the theory of performance of the contract upon the plaintiff’s part, counsel for the plaintiff and the court below evidently regarding the contract as a divisible one and the plaintiff entitled to compensation at the rate agreed upon for the work actually done, although less than the work agreed to be done. To this view of the contract we do not subscribe. Whether or not a contract is divisible is a matter which rests upon the intention of the contracting parties, as ascertainable from the contract itself, and the contract under review affords no ground for saying that the plaintiff expected to be paid or that the defendant intended to make payment in any amount whatsoever until the entire work contracted for had been completely performed. The plaintiff undertook to do all the necessary excavating * * * as per plans and specifications, etc.,” and the fixing of a particular rate for the several kinds of work involved had no other effect than to afford a means of measuring the amount of the plaintiff’s compensation upon his performance of all the work agreed to be done. Performance by the plaintiff of the contract upon his part was a condition precedent to his right of payment, there being nothing in the contract to the contrary (Tipton v. Feitner, 20 N. Y. 423, 429), and. upon the plaintiff’s admission that no more than 135 cubic yards out of 1144 had been excavated by him the complaint should have been dismissed for failure of proof. There was no amendment of the complaint, and if the fact is that the plaintiff was prevented from complete performance by the act of the defendant, his redress should have been sought in an action for damages caused by the defendant’s breach of contract, alleging the defendant’s prevention of performance, or in one brought to recover upon a quantum meruit for so much of the work as was done.

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

Freedman, P. J., and Gildersleeve, J., concur.

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