
    Exeter Machine Works, Respondent, v. Wonham-Magor Engineering Works, Appellant.
    First Department,
    November 5, 1909.
    Contract — quantum meruit — condition precedent — trial — charge.
    Where, in an action by a sub-contractor against a contractor to recover a balance alleged to be due for certain cable drives furnished, the contract between the parties provided that twenty-five per cent of the price, which was more than the alleged balance, was not to become due until the drives were accepted by the general contractor and the United States government, and the defendant alleged and proved that the work was never accepted either by the general contractor or the government, and that plaintiff knew what would be required for an acceptance by the government and plaintiff made no attempt to show that the cable drives as installed complied with the contract, the complaint should be dismissed in the absence of proof that performance was rendered impossible by the defendant." This is so whether the action be considered as one for breach of contract or for a quantum meruit. _
    The written contract when in evidence fixed and determined the rights of the parties.
    It is error to charge the jury that if defendant’s act in specifying a certain engine made the acceptance of the cable drives impossible, the defendant is estopped from insisting on such condition where the engine was specified before the contract was entered into and plaintiff knew what would be required.
    Appeal by the defendant, the Wonham-Magor Engineering Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 23d day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert McC. Marsh [Charles R. Howland with him on the brief], Howland, Murray & Prentice, attorneys, for the appellant.
    
      Franklin Hevius, for the respondent.
   McLaughlin, J.:

The only question litigated upon the trial was the first cause of action alleged in the complaint, regarding which there is little or no contest between the parties as to the material facts involved. One Smith, as general contractor, was constructing for the United States government a coaling station at Bradford, E. I., and he sublet a part of the work, which included the installing of two cable drives, to the defendant, which, in June, 1902, entered into a written agreement with the plaintiff by which, for $4,730, it agreed to furnish and install the same. The plaintiff installed the drives in November or December, 1903, but after two tests they were rejected by the general contractor and the United States government, and defendant notified plaintiff of that fact. The first cause of ^action set out in the complaint is to recover $875.02, the balance alleged to be due for such drives. Plaintiff had a verdict for this amount with interest, plus the amount admitted to be due upon the second cause of action, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

The respondent claims that the action is not brought to recover upon the contract, although the making of it is alleged in the complaint, but to recover upon a quantum, meruit for the materials furnished and work performed, the value of which is admitted to be the contract price, $4,730. Under the contract, which was put in evidence, twenty-five per cent of the purchase price ($1,182.50) did not become due until the drives had been accepted by the general contractor and the United States government. This amount is more than the amount claimed by the plaintiff, and it is alleged as a defense that neither the government nor the contractor has ever accepted the work, which fact was proved upon the trial and in no way controverted by the plaintiff.

Obviously, if there is nothing due under the terms of the contract, the defense is good whether the form of the action be considered as one for the breach of the contract or upon a quantum meruit. It is contended, however, that acceptance was rendered impossible by acts of the defendant. If this fact had been pleaded and established at the trial, plaintiff would have been entitled to recover, notwithstanding this condition in the contract. But the pleadings presented no such issue, nor did the proof establish it. It is true there was some evidence introduced to the effect that the track and cars installed by the defendant were defective, but it was not shown that the cable drives which furnished the power for moving the cars were rejected on that account; on the contrary, it did appear they were not accepted because one of them could not do the work required of it, and since it was desirable to have the two cable drives alike, both were rejected and subsequently removed from the plant by the general contractor. Whether this failure was due to imperfections in the cable drive itself, or whether, as claimed by the respondent, the cable drive conformed to the contract but was too small to do the work required, it is unnecessary to determine. The plaintiff had agreed that twenty-five per cent of the purchase price should not become due until the drives were accepted. It did not appear but that the plaintiff was, fully informed of what would be required of the cable drives; on the contrary, it did appear that one Wreaks, who obtained the contract for the plaintiff, knew what would be required, because he admitted that he saw the defendant’s contract with Smith, the general contractor, and he would not deny that he had alsd seen Smith’s contract with the United States government. It is not even suggested that the defendant in procuring the contract made any misrepresentations whatever on the subject. The contract itself is quite specific as to the cable drives. It provides: Each cable drive to have a capacity of 40 Horse Power at a cable speed of 180 feet per minute. Each cable drive to be directly connected to and driven by a double vertical engine, which will be two simple vertical engines mounted on one base plate and coupled to one shaft running at a speed not greater than 180 revolutions per minute, having cranks set at quarters and connected with the cable drives by means of a square jaw clutch so that the engine may be disconnected, permitting them to be turned over without operating the cable drive. A governor to be provided with each double engine.” Ho attempt was made by the plaintiff to show that the cable drives installed by it complied in any respect with the terms of the agreement. This, it seems to me, prevented a recovery by the plaintiff and especially so when considered in connection with the provision of the agreement which permitted the defendant to retain twenty-five per cent of the contract price. It is of no importance whether the action be considered as one to recover damages for the breach of a contract or on quantum meruit, because when the written contract was put in evidence, that fixed and determined the rights of the parties. Therefore, the complaint as the case stood at the close of the trial should have been dismissed.

I am also of the opinion that the court erred in charging the jury, at plaintiff’s request, that “ If the defendant by its act in specifying the 9 by 9 engine made it impossible for" the cable drivers with such engine to ever be accepted by the United States Government and by the contractor, he thus by his own acts made the condition as to acceptance impossible of performance, and is estopped from insisting upon any such condition.” There was no contract at all until after the nine by nine engine had been specified, and if it be true that acceptance by the government and contractor of an engine of that size was practically impossible, then the plaintiff ought never to have consented to the provision which made the payment of twenty-five per cent of the purchase price depend upon such acceptance. It deliberately entered into the contract; it knew what would be required; it was not deceived or misled in any respect, and if a mistake was made as to the size of the engine, then it was as much its fault as that of the defendant, and this furnishes no reason why plaintiff should be relieved from a contract deliberately made.

The judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellant to abide event.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

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