
    Thomas Doyle, App’lt, v. The Rector, etc., of Trinity Church, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Contract—Damages to work—Duress.
    In an acúon for the contract price of making a well and for extra work in repairing damages thereto, it was found by the referee that after the well was about completed defendant authorized the use of torpedoes to improve it; that they were used by one not an agent of the contractor, but believed to be so by defendant; that they resulted in damage to the well; that the contractor disclaimed responsibility therefor; that defendant refused to pay unless the repairs were made; that an agreement was made by which defendant was to, and did, furnish certain tubing, and defendant made the repairs, and as conclusions of law that the discussion resulted in a new contract in settlement of adverse claims which was not void for duress or coercion, and that plaintiff was not entitled to compensation for the extra work. Held, that as the testimony was not printed in the appeal book, it was to be assumed that the facts found were justified by the evidence, and the report was justified.
    (Pratt, J., dissents.)
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    The following are the referee’s findings:
    I find as matters of fact —
    The plaintiff’s assignor, Jesse Button, contracted with the defendant to sink a well on their premises to such depth as they might determine, for a stipulated price per foot.
    He did so sink the well until ordered to stop by the defendant, according to the terms of the contract.
    The proposition upon which said contract was based was signed “Jesse Button, by A. E. Both, general manager.”
    Daring the progress of the work said Both visited it in company with Button, and sometimes alone, and on several occasions collected from the defendant, on behalf of Button, money earned under the contract.
    Both was not the authorized agent of Button, but the defendant believed him to be such.
    After the boring had ceased by the defendant’s order, at the suggestion of Both, defendant authorized the use of torpedoes in the well shaft for the purpose of improving the quantity and quality of the water, which, however, resulted in-great damage to the well.
    ■ Said torpedoes were not used by or under the direction of Button, nor with his knowledge and consent, nor in his presence.
    Defendant then claiming that Button was responsible for the damage, demanded that he should repair the same at his own expense, and declared that if he would not do so, they would make the repairs and charge the same against a balance still owing by them to him upon the original work.
    Button disclaimed all responsibility, and denied the defendant’s claim to charge him with the cost of repairs, but suggested a mode for making the repairs, which required the use of certain additional iron tubing.
    The defendant then proposed to furnish said tubing and did furnish it at an expense previously ascertained by Button.
    Thereupon Button made the necessary repairs, employing for the purpose the tubing furnished as aforesaid by defendant
    Thereafter Button assigned to the plaintiff herein the claim upon which this action is based.
    I find as conclusions of law:
    That the original contract was completed on the part of said Button when he was notified by the defendant to stop boring.
    That the discussion between said Button and the defendant after the torpedoes had been used, as to their relative rights and liabilities, resulted in a new contract whereby it was agreed that defendant was to furnish certain iron tubing at its own expense, and said Button was to perform the work necessary to repair the well.
    That said contract was in settlement or compromise of adverse claims resting on an honest difference of opinion, and therefore was based upon a valid consideration, and binding upon both parties.
    That the fact that defendant refused to pay the balance due to Button on the original contract and threatened to apply it to the cost of the repairs, did not constitute in law such duress or coercion as would invalidate the contract for the repairs.
    That the defendant is not liable upon the claim in this action, except for the sum of $134.77, with interest thereon, admitted to be due upon work performed under the original contract.
    
      L. A. Fuller, for app’lt; S. P. Nash, for resp't
   Dykman, J.

—The judgment formerly rendered in this action in favor of the defendants was reversed by the court of appeals upon errors of law, and now a trial has been had before a referee, and the plaintiff has appealed from the judgment.

The testimony is not printed in the case, and it is to be assumed that the facts found are justified by the evidence. That being so, the conclusions of law followed and the report was justified.

The judgment should be affirmed, with costs to the respondent

Barnard, P. J., concurs.

Pratt, J. (dissenting).

—At the request of defendant the referee found that, after the explosion, it was agreed between the parties that if defendants would supply the new pipe required, Button would do the work required to repair the damages, they claiming he should do it at his own expense.

At request of plaintiff the referee found the further facts that Button disavowed his liability to make the repairs, and did not say he would do it without pay.

Taking all the findings together, it appears that the parties came to an agreement as to the practical means by which the injury should be repaired, but did not come to an agreement upon the legal rights of the parties, which were left undecided and free to be brought into determination by either party.

This was the state of facts which appeared before us upon the former appeal in February, 1887, the testimony of the parties being entirely in accord; both parties agreeing in their statement of the negotiation which followed the explosion.

It also appeared on the trial, as it appears now, that defendants refused to pay Button for the work already done unless be made the repairs, and said that if he did not make them, the defendants would do so, and deduct the expense from the money already earned by Button.

Defendants then claimed that Button, by going on under those circumstances to complete the work, lost all right to compensation ; that, in legal effect, he agreed to make the repairs without pay, and was bound by his agreement.

Upon both those questions this court was of opinion that defendants’ contention was wrong; that no agreement to do the work without pay could legally be implied., and that if such agreement was made it did not bind Button, as an unjust advantage was taken by defendants of his position.

From these views there was no dissent, nor is any expressed by the court of appeals in its opinion, found in 118 N.Y., 678; 28 N. Y. State Rep., 972.

On the contrary, it is entirely plain that they must have been adopted. For all the facts now shown appeared without dispute in the record then before the court, testified to by both parties ; and had that court been of the opinion that they constituted a defense to the plaintiff’s claim, the judgment then existing in favor of the defendants directed by the trial court would have been affirmed.

The decision made by the appellate court directing a new trial could not have been made, except by holding, as was held below, that the facts upon which the referee’s decision is based were no defense.

We must be controlled by that decision.

It follows that the judgment appealed from should be reversed, with costs to the plaintiff to abide the event, and a new referee substituted.  