
    Patrick Flaherty, Resp’t, v. Henry C. Miner et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 28, 1890.)
    
    1. Contract—Reformation—Stipulation—Waiver.
    Plaintiff entered into a contract with defendants to excavate certain lots for $3,500 in payments as it progressed, to be made on the certificate of the architect. He was paid $900, and upon their refusing to pay a balance due brought this action, alleging that the matter relating to the certificate of the architect was inserted by mistake. At the trial defendants’ counsel stated that there was no need for a reformation; that all the claim they made was that plaintiff was to do the excavating, etc., for the sum of §3,500, payments to be made as the work progressed, and on his motion evidence as to the certificates was excluded. Held, that the portion of the contract requiring the production of the certificates must be deemed to have been stricken from the contract, and that it was reformed in reference thereto.
    3. Same—Substantial performance.
    Where a contractor has substantially performed the contract, although a small and unimportant portion thereof remains to be performed, he can recover the contract price, less the expense of performing the portion left unperformed by him.
    3. Same—Waiver.
    Plaintiff testified that when he left there was some more work to be done and that defendants promised to send him word whenever they wanted any more earth removed; that subsequently he sent men and teams to remove the earth and defendants prohibited such removal at that time. Held, that the jury could have found upon the evidence that the defendants waived further performance on the part of plaintiff.
    4. Same—Excuse for non-performance.
    Plaintiff after receiving the §909 and earning §3,000 more asked defendants for more money and they promised to pay him §1,500 and after-wards refused him anything. Held, that this was a breach of contract on their part and justified a refusal on the part of plaintiff to proceed further with the contract and warranted a recovery for the work done.
    5. Same—Architect’s certificate.
    Plaintiff applied to the architect for a certificate and the latter stated that on account of the conduct of defendants he would not give it, or have anything to do with the matter, and on plaintiff reporting this to defendants they stated that they would see about it. Held, that plaintiff was not obliged to make any further application to the architect for his certificate.1
    Appeal from judgment of the New York common pleas, general term, affirming judgment in favor of plaintiff, entered upon verdict of jury.
    
      James M. Smith, for app’lts; Henry Schmitt, for resp’t.
    
      
       Affirming 23 N. Y. State Rep., 91.
    
   Earl, J.

In June, 1881, the plaintiff entered into a written contract with the defendants to excavate and remove the earth and boulders from certain lots in the city of New York, upon which they were to erect a building. It 'was provided in the contract that they should pay him $3,500 for the work in payments as it progressed. It was also provided that before he could demand any payment he should obtain the certificate of the architect employed by them. He entered upon the execution of the contract, and during the progress of the work received from them $900. After their refusal to pay him the balance of the contract price he brought this action to recover the same. He alleged in his complaint that all the portions of the contract relating to the certificate of the architect were inserted therein by mistake: and besides other relief he prayed that the contract should be reformed by striking therefrom so much as related to the architect's certificates. The answer put in issue all the material allegations of the complaint, and the plaintiff noticed the action for trial at a. special term as an equity action. At that term the defendants appeared, and, claiming a jury trial, moved that the case be stricken from the special term calendar, and upon their stipulation that it might be tried at a circuit before a jury with the same effect as if tried at an equity term of the court as to the reformation of the contract, the court ordered the case to be stricken from the calendar, and it was thereafter moved for trial at a circuit court, and at the commencement of the trial plaintiff’s counsel handed to the court the stipulation just referred to. Thereupon the defendants’ counsel stated as follows: “ That he claimed in this action that the issues in the case were triable by jury, and he claimed such trial ; that there was no necessity for any reformation of the contract, and no claim was made-by the defendant that the plaintiff was to erect a building which cost between $50,000 and $60,000, while this contract was for but $3,500; that the defendant makes no claim that the plaintiff was to do anything other than the excavating, digging, removing of all earth, boulder and other matter, and leave sand for completion of work on the premises, 312 and 314 Eighth avenue, for the sum of $3,500, payments to be made as the work progressed; that the contract did not include underpinning of adjoining premises, and rocks were to be removed by other parties.” The court then directed that the trial should proceed before the jury.

Upon the trial the plaintiff offered evidence bearing upon the issue as to the reformation of the contract, and the defendant’s counsel objected to such evidence, and upon his objection it was excluded, and no evidence was received bearing upon that issue. The trial proceeded and it was undisputed that the plaintiff had been paid only $900 and the jury awarded him a verdict for $2,000 besides interest. Judgment upon the verdict having been affirmed the defendants have brought this appeal and they now claim, among other things, that the plaintiff was not entitled to payment without the production to them of the architect’s certificate as required in the contract as originally drawn.

We think the counsel for the plaintiff is right in his claim that that portion of the contract requiring the production of the certificates must be deemed to have been stricken from the contract, and thus that the contract was reformed in reference thereto. We think that is the plain purport and effect of the stipulation given at the commencement of the trial, and that it was so understood by the defendants’ counsel when upon his objection all the evidence offered on the part of the plaintiff upon the issue as to the reformation of the contract was excluded by the court. After what took place upon the trial it would be extremely unjust now to hold that the plaintiff was bound by so much of the contract as he claimed was inserted by mistake, and the case should now be treated as if the contract had been reformed as prayed in the complaint.

Thus the only issue to be tried at the circuit was whether the plaintiff had performed his contract. Upon that issue the plaintiff gave evidence tending to show that he had performed his contract and that the defendants promised to pay him the balance of the contract price. The defendants gave evidence tending to show that he had not performed his contract and that they had been obliged to expend considerable sums of money to complete the work which he had contracted to do ; and the trial judge charged the jury that if he had not substantially performed his contract he could not recover the balance of the contract price; but that if he bad substantially performed the contract, although a small and unimportant portion thereof remained to be performed, he could recover the balance of the contract price, less the expense of performing the portion left unperformed by him. There was no exception to the rule of law thus laid down and there could be no valid exception thereto. Glacius v. Black, 50 N. Y., 145 ; Heckmann v. Pinkney, 81 id., 211; Nolan v. Whitney, 88 id., 648; Whelan v. Clock Co., 97 id., 293.

It is true that the jury apparently allowed the defendants $600 for the expense of doing work which the plaintiff was bound under his contract, to do; and if it had appeared upon the trial without dispute that such a substantial portion of the work remained undone, and the objection had been properly taken, it may well be that the plaintiff could not have recovered upon the theory of a substantial performance. But there is no exception which now presents the point to us. There was proof upon the trial tending to show substantial performance. The proper rule of law was laid down to the jury, and there is no exception winch we can consider upon which the defendants can claim that the judgment should now be reversed because there was not substantial performance. The trial judge could have set aside the verdict because the jury either misconceived the facts or his instructions upon the law. But this court reviews only exceptions pointing out errors.

There was also evidence from which the jury could have inferred that the defendants waived any further performance on the part of the plaintiff. He testified that when he left" there was some more work to be done, and that the defendants promised to send him word whenever they wanted any more of the earth removed, and that they never sent him word. The evidence showed that subsequently, some two or three months after he left the work, he sent men and teams to the lots to remove more of the earth, and that the defendants prohibited such removal at that time. For this reason, therefore, the jury could have found upon the evidence that the defendants waived further performance of the contract on the part of the plaintiff.

There was still another ground upon which the plaintiff could have been excused from complete performance, in case the performance was, in fact, incomplete. The contract required the defendants to make the plaintiff payments as the work progressed. After he had received the $900, and had earned, as the jury have found, $2,000 more, he asked the defendants for some more money, and they promised to pay him $1,500 and afterwards refused to pay him anything, and thus there was a breach of contract on their part. This took place before the plaintiff abandoned work upon the contract. This breach of contract on the part of the defendants would have justified a refusal on the part of the plaintiff to proceed further with the contract and warranted a recovery for the work done.

So, if we treat the contract as reformed and all therein contained requiring the architect’s certificate as stricken out, there can be no ground for saying, upon the evidence in the case, that the jury could not properly render the verdict which they gave the plaintiff.

But we reach the same result, if we regard the requirements of the architect’s certificate as still in the contract. Then the plaintiff was entitled to the certificates from time to time as the work progressed, and as payments became due from the defendants, and after, as the jury have found, there was $2,000 due him, in addition to the $900 which he had received, he applied for the certificate that he might obtain a further payment, and the application was denied. The jury were authorized to find that that was such an unreasonable refusal as would dispense with its production. There was evidence also on the part of the plaintiff that he applied to the architect for a certificate, and that the architect stated to him that, on account of the conduct of the defendants, he would not give it or have anything more to do with the matter, and lie reported this to the defendants, and they stated that they would see about it. Certainly, after that he was not obliged to make any further application to the architect for his certificate, which he had thus arbitrarily declined to give. Thomas v. Fleury, 26 N. Y., 33 ; Bowery National Bank v. Mayor, 63 id., 339; Nolan v. Whitney, 88 id., 648; Smith v. Alker, 102 id., 90.

There was also evidence tending to show that the defendants waived the production of the architect’s certificate. After the plaintiff claimed that he had substantially performed the contract they promised to pay him $1,500, and the balance at a future time, and they made no requirement whatever that the architect’s certificate should be produced.

The objection on the part of the defendants that the complaint was not sufficient is,a very technical one, as the real merits of the entire controversy between the parties were litigated, and manifestly no harm came to the defendants from any imperfection in the complaint. A technical answer, therefore, to the objection is justifiable, and that is that no proper or sufficient objection was taken to the form or substance of the complaint at the trial, and it must, therefore, be deemed sufficient to justify all the evidence given.

There was undoubtedly a sharp conflict in the evidence, but the verdict of the jury settled that, and concludes us as to the facts.

There are some minor exceptions appearing in the record which require no particular notice.

We see no reason to doubt that substantial justice was done by the verdict, and the judgment should be affirmed, with costs.

All concur.  