
    Abraham Rubin and Harry Rubin, Respondents, v. John C. Gabler Company, Appellant.
    Second Department,
    June 12, 1908.
    Trial — action upon contract' for quantum meruit — grounds of recovery limited—litigation of issue not pleaded —- objection on appeal.
    Where a complaint states two causes of action, one based upon a contract alleged to have been performed, and the other upon a quantum meruit for the value of the same material and services furnished, and no evidence is given as to the value of the materials and services, any recovery must be on the first cause of action.
    When the plaintiff fails to prove the full performance of the contract as alleged, but'without objection on the part of the defendant is allowed to sliow that the defendant prevented due performance and that the time limit fixed by the contract was waived, and the defendant introduces evidence on that issue which goes to the jury without objection, he cannot on appeal object that under the complaint the plaintiff should not have been allowed to excuse his failure to perform fully as alleged.
    Appeal by the defendant, the John 0. Gabler Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of • the plaintiffs, rendered on the 20th day of January, 1908, in an action brought to recover for materials and work, labor and services furnished and performed for the defendant by the plaintiffs..
    
      George B. McCartee, for the appellant.
    
      James E. Finegan, for the respondents. .
   Rich, J.:

The complaint contains two causes of action, the first based upon a contract all of the terms and conditions of which it is' alleged were duly performed by plaintiffs, and the second upon quantum meruit for the value of the same materials and services. There was no evidence given upon the trial of the value of the materials furnished or services rendered, and the trial court properly limited the plaintiffs’ right to recover to the first cause of action, resting upon the full performance by plaintiffs of the alleged contract. By tlis tema of this instrument the plaintiffs were to deliver the mate» rials not later than May 7,1907,. and complete the labor on or before May ninth. The contract is contained in á written proposal made by plaintiffs and defendant’s letter of acceptance which contained the following clause :• “ Time is the- essence of this contract as I am iinder forfeit of $50.00 a day for completion.” ' Upon' the trial the evidence of the plaintiffs established the fact that their labor was. not completed within the time limited by the contract, and the appellant now contends that the judgment must be reversed for the reason that having alleged full performance of the contract the plaintiffs could not recover upon proof that they did not fully perform but were prevented from so doing by the acts of the defendant, and that completion within the time limit fixed by the contract was ..waived. The difficulty which the appellant encounters is that objection to such evidence was not properly or seasonably taken. The appellant permitted evidence to. be given without objection that the plaintiffs’ failure to complete their work within the time limit of their contract was. caused by the- failure of the • defendant to have the building in such condition that their work could be done. At no time during the trial Was the attention of the court directed to any claim that such evidence was inadmissible-under the pleadings,, or that the plaintiffs were not entitled to recover upon such evidence. The attention of the court was . not called to the fact that they had pleaded full and complete performance. The defendant introduced evidence upon the same subjects, and the case was tried and submitted to the jury upon the question of' whether there had been substantial,' although not- complete, performance by the plaintiffs. The evidence for both parties upon this question was before the jury without objection ; and the charge of the court, made at the request of counsel for the plaintiffs, “ that there is an implied obligation on the part of the defendant to have the premises in readiness for the plaintiffs’ work,” and “if the jury find that there was a delay caused -on the part of plaintiffs by reason of the fact" that the ■ deféndánt did not have those premises in readiness, on the day set for the beginning of the work,- that there is a waiver as to.the time,” was not excepted to. It is too late, now to raise this question; the appellant cannot be permitted to object, to the testimony for the first time in this court, and avail itself' of the. benefit of -the rule of law suggested; Ho error was committed by the trial court in the charge relating to the alleged counterclaim. There was no evidence of any loss of bonus or payment of forfeiture caused by plaintiffs’ failure to finish their work within the time stated in the contract, and no evidence of damage of any kind sustained by defendant- which could be charged to such failure. In the absence of such evidence, the defendant was not entitled to any relief based upon the counterclaim.

The judgment of the Municipal Court must be affirmed, with costs.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  