
    Isaac E. Barnes, Respondent, v. Edward V. Loew, Appellant.
    
      Contract to supply a windmill and water tower—their failure to supply the house with water — charge of the judge.
    
    Where, in an action brought by a contractor to recover the price oí an apparatus which was designed to supply with water the house of the defendant, but failed to do so, the testimony is conflicting as to the cause of the failure, and the court, upon the trial of the action, charges the jury that the plaintiff must prove substantial compliance with the contract in order to recover, and that if the jury believed that the plaintiff did not put the tank and tower in good substantial working order under the contract they must find for the defendant, and then, without exception by the defendant, adds, that as the court reads the contract, there is no guaranty by the contractor that the plant will produce any certain result, and that if the contractor has fulfilled the specifications, he has performed the contract and is entitled to his money, a verdict rendered in favor of the contractor must be allowed to stand.
    Appeal by the defendant, Edward Y. Loew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 4th day of December, 1896, upon the verdict of a jury, and also from an order bearing date the 30th day of November, 1896, and entered in said clerk’s office, denying the defendant's motion for a new trial made upon the minutes.
    This action was brought to recover the contract price of a well, pump and windmill erected by the plaintiff upon the defendant’s premises.
    
      Abram A. Demarest, for the appellant.
    
      William McCauley Jr., for the respondent.
   Goodrich, P. J. :

On July 23,.1896, the plaintiff and defendant entered into the following contract: ■ ‘

“ The party of the first part (plaintiff), for and in consideration of the sum of three hundred and fifty dollars ($350), to be paid by the party of the second part (defendant), agrees to do the following work and supply the following materials, viz.: To drill a well on the premises of the party of the second part situated north of Nanuet; said w.ell to supply at least 1,000 gallons of clear water within eight hours daily ; tó supply a suitable pump for" well and a windmill with fifty-foot tower with tank of 1,000 gallons capacity, set in tower at a distance of 16 feet or more from the ground to give sufficient force to supply house with water, to supply 70 feet of in. iron pipe. The party of the first part further agrees to connect and put in working order the above-mentioned apparatus and guarantee the supply of water hereinbefore mentioned.”'

Subsequently the plaintiff drilled the well, erected the windmill, made the pipe -connections, procured a fifty-foot tower with a tank - of 700 gallons capacity, which was accepted by the defendant in place of the" 1,000 gallon tank named in the contract. There is no question raised by the defendant as to the sufficiency of the well, but there is a question as to the suitability of the pump and the capacity of the windmill to raise water into the tank; and it is apparent from the evidence that the apparatus, taken as a whole, does not actually supply the house with water, and that there is some defect either in the original construction or the subsequent, condition. The testimony as to the cause of this failure is quite conflicting.

The plaintiff produced evidence of the proper construction of the apparatus, while the defendant seems to have been contented to produce evidence showing the failure of the apparatus to do its work in supplying the house with water. The learned court charged : As I read this contract there is no guarantee on the part of Mr. Barnes that this plant would produce any certain result. lie simply agrees to put up a tower so high, put in a tank so many feet from the ground and of such a capacity, put in a pump and to dig [a] well which shall produce a certain number of gallons of water a day. Now, if he has performed all those specifications he has performed his contract and is entitled to his money.” To this portion of the charge there was nó objection; and the court, in the body of the charge and at the request of the defendant, stated that the plaintiff could not recover anything unless he had substantially complied with the contract, and that if the jury believed that the plaintiff did not put the tank and tower in good substantial working order under the contract they must find for the defendant. The jury found a verdict for the full amount of the contract" price.

It is sufficient to say that, whether or not this charge of the court was correct, the defendant acquiesced therein without exception and consequently no such question is now before us. I have carefully examined the testimony in the case, and am of the opinion that the submission of the questions of fact to the jury was proper and that there was sufficient evidence to support the allegations of the complaint.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  