
    HIRAM A. CRANE, Plaintiff and Respondent, v. HERMAN KNUBEL, Defendant and Appellant.
    Contract.—Building.
    1. What not substantial performance.
    
    1. Where a payment is to be made when the trimmings are all done and doors all hung, and the builder abandons the work leaving the doors on the basement and first floor unhung, and a considerable part of the trimmings undone, there is not sufficient performance to entitle him to the payment.
    3. Waiver of strict performance, what not sufficient to establish.
    
    A statement to the assignee of the contractor, made by the owner, at or about the time that he had served the contractor with a written notice insisting on full performance, that he had no money but expected some, and would call down and see the assignee and settle with him; a subsequent statement that he could not pay then—the work was not done, the doors were not hung; that he could not pay it then as he had not the money; he would pay it next week; he would give a check for it; that the parlor doors were not hung; and a statement at a further interview that the contract was not yet fulfilled; that the contractor had abandoned his contract and put him to extra expense; are insufficient to establish a waiver.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided May 4, 1873.
    Appeal from judgment entered upon the report of a referee.
    
      The action was brought' to recover eight hundred and twenty-one dollars and ninety-one cents, the amount of an order drawn by John Gr. Hoffman in favor of the plaintiff, and accepted by the defendant, and payable by its terms out of the fifth payment to which John Gr. Hoffman might become entitled under a certain builder’s contract made with the defendant.
    The answer alleged that said John Gr. Hoffman abandoned the contract before the fifth payment became due.
    The issues were referred, by consent of parties, to a referee to hear and determine the same, and his report is as follows:
    . 1. That on or about October , 1867, the defendant and one J. Gr. Hoffman made and entered into a certain contract in writing, wherein and whereby the said Hoffman agreed to well and sufficiently erect and finish all the carpenter work in two certain new four-story and basement brick dwelling houses, situated on the lot known as the southwest corner of Seventh-avenue and Fifty-ninth street, in the city of Hew York, agreeably to the plans and specifications made by A. Pfeund, architect, and for which, by the terms of said contract, the defendant agreed to pay him, the said Hoffman, the sum of six thousand dollars in manner following: ...
    
      First. When the third tier of beams are leveled up and bridged, the sum of five hundred dollars.
    
      Second. When the roofs are tinned and skylights on, one thousand dollars.
    
      Third. When the floors are laid, partitions all set, furring all done, the sum of one thousand dollars.
    
      Fourth. When the stairs are up, sash all in, one thousand dollars.
    
      Fifth. When the trimmings all done, doors all hung, one thousand dollars.
    
      Sixth. When the work is completed, finished and done in conformity with the plans and specifications, the sum of one thousand five hundred dollars.
    
      2. That the said Hoffman duly entered upon the said contract, and that" the plaintiff furnished lumber to the said Hoffman, to aid him in the performance thereof, to the value and amount of about the sum of one thousand five hundred and eighty dollars, none of which has been paid, but is still due and owing to the plaintiff from the said Hoffman.
    3. That while performing the work under said contract the said Hoffman, in payment of certain lumber which he wished to purchase of the said plaintiff to use upon said work, made and gave to the said plaintiff a certain instrument in writing in the words following, to wit: .
    “Hew York, March 5th, 1888.
    “ Mr. Herman" Ektjbel : Please pay to H. A. Crane or order, eight hundred and twenty-one Tyo- dollars (SSBlAjL), and deduct the same from the fifth payment or payments due when trimmings are all on and doors all hung, and much oblige
    “ Yours respectfully,
    “ $821xyx. J. Gf. Hoeemaw.”
    —which said instrument was duly accepted by the said defendant in writing across the face thereof in the following words: ‘ ‘ Accepted : payable when payment is due. H. Knubel.”
    4. That after the said instrument had been so accepted by the said defendant, the said Hoffman delivered the said instrument so accepted to the plaintiff in this action, and the said plaintiff, on the strength and faith thereof, furnished lumber to the said Hoffman to the full and exact amount and value of eight hundred twenty-one dollars and ninety-one cents.
    5. That the "said lumber so furnished was used by the said Hoffman on the said buildings of the said defendant, and has never been paid for except by said draft.
    6. That the said Hoffman did not complete or finish Ms said contract, but abandoned the same before the work was completed.
    7. That at the time the said Hoffman abandoned the said contract he had completed the work necessary thereunder to entitle Mm to the fifth payment, except in some slight particulars.
    8. That the said’Hoffman, before abandoning the said contract, substantially completed the work necessary to be done to entitle him to the fifth payment, and was substantially entitled to said payment.
    9. That the 'difference between the amount of said payment (one thousand dollars), and the amount of the instrument in suit (eight hundred and twenty-one dollars and ninety-one cents), would more than pay for the work necessary to be done to complete said payment.
    10. That after the abandonment of the said contract, and in the month of April, 1868, the plaintiff caused said instrument to be presented to the defendant for payment, who waived the strict performance of the contract by Hoffman, and promised and agreed to pay the amount called for by said instrument to the plaintiff.
    11. That I have calculated the interest on said instrument from May 1, 1868, to January 38, 1871 (the date hereof), and find the same to be one hundred and fifty-six dollars and eighty-one cents, which added to the amount of said instrument, makes the sum of nine hundred and seventy-eight dollars and seventy-two cents.
    Upon the above found matters of fact I find as matters of law:
    That plaintiff is entitled to judgment against defendant for the sum of nine hundred and seventy-eight dollars and seventy-two cents, with interest thereon, from the date hereof, besides the costs and disbursements of the action, and Ido order and direct judgment to be entered accordingly.
    The defendant excepted to the 3rd, 4th, 7th, 8th, 9th and 10th findings of fact, and the conclusion of law of the referee.
    Judgment was entered on the report and defendant appealed.
    
      Isaac L. Egbert, attorney and of counsel, and James M. Smith, of counsel for appellant, argued:
    I. The referee erred in denying the motion of defendant’s counsel for a dismissal of the complaint after plaintiff had rested his case. 1. The draft “Exhibit No. 1,” is not a biff of exchange—not being payable absolutely and at all events. It was not to become payable until the money should be due on fifth installment of contract, “Exhibit No. 2.” The plaintiff rested without proving performance of the work under the contract which would entitle Hoffman to said fifth payment. The work not being performed the order never became due (Van Wagner & Jewett, 27 Barb. 181; Galley v. Prindle, 14 Id. 186; Franklin v. Robin, 1 Johns. Ch. 157). 2. Assuming the testimony of the witnesses for the respondent to be true, that “Mr. Knubel promised to settle with Mr. Crane,” and that such promise was subsequent to the abandonment, it could not, in law, be deemed a waiver of performance by Hoffman. The contract could not be altered or performance of it waived by parol, and certainly not between the appellant and the respondent (the latter not being a party to the contract), unless the parol contract be upon sufficient consideration, and be executed (N. Y. Com. Pl. 1853; Tinker v. Gerraghty, 1 E. D. Smith, 687).
    II. The seven, eighth, and tenth findings of fact by the referee are unsupported by the law or the evidence. 1. The evidence does not show that Hoffman at “the time of his abandonment of the contract had completed the work necessary thereunder to entitle him to the fifth payment, except in some slight particulars,” or that he substantially completed said work, or was substantially entitled to said payment. Such payment was not to become due until the “trimmings were all on and doors all hung.” There is no conflict of evidence as to the fact that when Hoffman abandoned the contract there were no doors hung on the basement, first or second floor of either house. There, is no conflict of evidence as to the fact that the stairs were untrimmed, or as to the fact that there were no blinds furnished or hung by Hoffman—this being part of the trimmings. A party may retain, without compensation, the benefits of a partial performance, when the contractor, without the consent or agreement of the 1 other, of his own mere volition abandons the further performance of it. The acceptance by the defendant of the order “Exhibit Ho. 1,” placed him in no different attitude with the plaintiff than he stood towards the contractor. And the same rule which would dis-entitle the contractor to the payment, obtained in absolving defendant from liability to the plaintiff (Ct. of App. 1858; Smith v. Brady, 17 N. Y. 173; Pike v. Butler, 4 Id. 360; 12 Johns. 274, 166; 2 Mass. 147; Jennings v. Camp, 13 Johns. 94; Lantry v. Parks, 8 Cow. 63; 4 Wend. 285; 11 Id. 484; 4 Cow. 564; 10 Johns. 36; 5 Denio, 406; 4 Coms. 411; 1 E. D. Smith, 395; 2 Id. 195; 9 N. Y. 93; 26 Id. 427; 36 Id. 223; 27 Id. 379; 38 Id. 189). It is the usual practice of owners of land contracting for the erection of building thereon, to reserve the largest payments until the last, when they pay in installments, as an indemnity against loss by the abandonment or non-fulfillment of the contract by the builder, and the soundness of the theory of the cases above cited, which give to the owner the benefit of a partial performance in case of a desertion of the contract by the builder, is apparent. The owner is compelled in such a case for his own protection to take charge of the completion of the work at a sacrifice of his time, and in most cases is pecuniarily damaged by delay. These last payments are supposed usually to embrace the builder’s profits, and on no principle of equity is he entitled to such profit on a contract which he has by his own act abandoned before completion. 3. The evidence does not support the tenth finding, to wit: “That after the-abandonment of the contract, the defendant waived strict performance by Hoffman, and promised to pay the amount of ‘Exhibit Ho. 1.’ ” The contract was under seal, and performance could not be waived or altered by parol without a consideration, &c. (N. Y. Com. Pl. 1853; Tinker v. Gerraghty, 1 E. D. Smith, 687). 4. When there is no conflict of evidence, the conclusion to be drawn from these facts is a question of law, and the court will inquire into the facts notwithstanding the finding of the referee (Fellows v. Northrop, 39 N. Y. 117; Pratt v. Foote, 9 Id. 465; Farmers’ Bank v. Vail, 21 Id. 486; Valentine v. Connor, 40 Id. 253; Putnam v. Hubbell, 42 Id. 113).
    
      David McAdam, attorney, and of counsel for respondent, argued :
    I. If the contract between Hoffman, the drawer, and the defendant, the drawee and acceptor, was so far performed as to entitle the contractor to the fifth payment, there can be no doubt of the plaintiff’s right to recover, because such order, and its acceptance, operated as an assignment by Hoffman to the plaintiff of the fund in the defendant’s hands (Lowrey v. Stewart, 25 N. Y. 239, affirming the superior court, general term, 3 Bosw. 505; Parker v. City of Syracuse, 31 N. Y. 376 ; Wells v. Williams, 39 Barb. 567; Morton v. Taylor, 1 Hill, 583). The drawing of a bank check is not of itself an assignment of the fund, but when accepted it is (Butterworth v. Peck, 5 Bosw. 341; Chapman v. White, 6 N. Y. 412).
    II. Was the fifth payment earned ? This depended upon the fact whether the particular work required to be done by the contract, to entitle the contractor to the fifth payment, was done or not, or whether its performance was waived, and the work as done' accepted as such performance. • The fifth payment became due, according to the contract, “when the trimmings all done, doors all hung, one thousand dollars.” In the performance of a contract, substantial performance is all that is required (2 Pars. on Cont. 172, and see notes to p. 35, 4 ed.; Add. on Cont. 4 ed., p. 453; Smith v. Gugerty, 4 Barb. 621; Sinclair v. Tallmadge, 35 Barb. 602; Thomas v. Fleury, 26 N. Y. 32; and see also 28 N. Y. 444. There was a clear substantial performance under these decisions. (a.) The trimmings were all done, except fitting up some closets after the plumbers, and this work is usually done last; and this evidence stands uncontradicted, (b.) The doors were all hung, when Hoffman left the buildings, on the two upper stories, and the balance of the .doors were all in the building at the time, or were taken to the building from Hoffman’s shop, by the defendant, after Hoffman left, (c.) The doors left unhung could be hung for from twenty-five dollars to forty dollars, (e.) It must be remembered, in addition to this, that the fifth was not the last payment under the contract, nor was it the last work required to be done, to render complete performance. The finishing up of the contract, and for which a,further payment of fifteen hundred dollars was to be made, necessarily involved a general finishing up of details, and of matters generally, in all parts of the house, many of which of necessity have to be done with the finishing of the building. Under such circumstances, the law will not be so technical in regard to performanee as it would on final, completion, which is supposed to embrace full performance of everything.
    III. Upon the evidence offered, the question of performance became one of fact, and the finding of the referee upon it, in favor of the plaintiff, is conclusive to the same extent as the verdict of a jury (Sinclair v. Tallmadge, 35 Barb. 602; Murphy v. Boker, 3 Robt. 1; Williams v. Vanderbilt, 29 Barb. 491, 504; Id. 218 ; 33 Barb. 347; 2 Hilt. 528 ; 24 How. 58).
    IV. There was a clear waiver, by the defendant of strict performance of the contract. The defendant, when called upon by Crane for payment, after Hoffman had left the work, instead of repudiating the order on. the ground of non-performance of the work, so that Crane, the plaintiff, might complete it himself, and he certainly could and would have done it if required, the defendant made an unconditional promise to two witnesses to call down to Crane’s, the plaintiff, and pay the order, (a.) Defendant went to Hoffman’s shop,. after Hoffman had left the work, and, under his contract, took away all the doors for his building that had not been furnished to it by Hoffman. This is uncontradicted. (b.) As the fifth payment was not the last payment under the contract, nor was the work to be done to earn it the last work required to render complete performance, waiver of strict performance of the contract will more readily be inferred, (e.) Considering also the relations of the parties, and the fact that the contract was one not requiring the personal services of Hoffman, and that if Hoffman had left his contract partially unperformed, Crane would have the right to step in and complete it himself, in order to protect his rights as assignee under the order; any act or word, dispensing with or waiving the exercise of this right on the part of Crane, is, in law, a waiver of further performance. (ft.') It must also be remembered that the fifth payment amounted to one thousand dollars, the order but eight hundred and twenty-one dollars, and two experts were sworn, and testified that all the work required to be done under the contract, to entitle the contractor to the fifth payment, was done, except the mere hanging of the doors, which could be done for twenty-five dollars, and not to exceed forty dollars. (e.) It must also be remembered that there was a further payment of fifteen hundred dollars (over and above the fifth payment) upon the completion of the building.
    V. The provisions Of a written contract may be waived by the person for whose benefit the provision was inserted, and it is not necessary that the waiver should be in writing (Smith v. Gugerty, 4 Barb. 633; Fleming t. Gilbert, 3 Johns. 538; Mayor v. Butler, 1 Barb. 338 ; Friess v. Rider, 34 N. Y. 368, and authorities cited; Keating v. Price, 1 Johns. Cas. 33; Clark v. Dales, 30 Barb. 43; Meehan v. Williams, 36 How. 73 ; Pirrepont v. Barnard, 6 N. Y. 379; Flynn v. McKeon, 6 Duer, 303). (a.) Examples of waiter. 1st, as to bills. It was held in reference to the protest of bills, that any act calculated to put the holder off his guard, and preventing him from treating the note as he otherwise would, is in judgment of law a waiter (Sheldon v. Horton, 53 Barb. 33, and to the same effect, 43 N. Y. 93). Speaking of demand and notice, the court say: 6 6 So an indorser may waive these proceedings, and consent to be bound, although these are not taken. This is upon the obvious priuciple, that a party to a contract may renounce the benefit of any stipulation in it, designed for his own protection; such waiver •may be by express word, or it may arise by implication from the acts or consent of the indorser. It may precede the maturity of the note, or may arise upon a promise to pay the note, with knowledge of the laches afterward, and the waiter required no new consideration” (Sheldon v. Horton, 43 N. Y. 93). And a 
      promise to pay after an irregular or informal notice, is in law a waiver (see 5 Johns. 248, 375 ; 16 Id. 152 ; 10 Wend. 504; Leading Cases on Bills of Exchange, 473, and notes thereto; and see 12 How. 166). (5.) Generally waiver is more commonly an implication of law, from acts or circumstances, and partakes of the nature of equitable estoppel. A party waves his rights, if in conversation he so intends, and so expresses himself as to be thus understood by the other party, in the exercise of common understanding, and is understood as waiving them (Hill, on Cont. vol. 2, p, 171); and an admission by a defendant calculated to influence the conduct of the man with whom he is dealing, and actually leading him into a line of conduct which must be prejudicial to his interest, unless the defendant be cut off from the power of retraction, constitutes an estoppel in pais (3 Hill. 215 ; Hill, and Denio Supp. 430), and in the absence of proof of the effect of the admission, on the party setting up the estoppel, it is for the jury to say, whether, on the facts, the several essential parts of the estoppel are proved (Brown v. Bowen, 30 N. Y. 541); and waiver need , not be established by positive proof, it may be inferred from circumstances (Meehan v. Williams, 36 How. 73). The statute requirement, that there shall be two sureties in a bond, is for the benefit of the creditor; and he may dispense with more than one without invalidating the bond (Ward v. Whitney, 3 Sandf. 399). In an action for the price of hot air furnaces, it appeared that plaintiff agreed to put in a cold air register face, which he failed to do ; defendant used the furnaces without the register face three months, without complaint, held a waiver of defendant’s right to insist on the work being done, as a condition precedent (Bristol v. Tracy, 21 Barb. 236). Where goods are sold for which a note is to be given at six months, if the goods be delivered, and the note not demanded until two months after the sale, the condition will be deemed to be waived (Hennequin v. Sand, 25 Wend. 640; 6 Id. 77; 2 Hill. 165; as to waiver, see also, 10 Pick. 349 ; 6 Id. 262; 19 Maine, 303, 154). Ho consideration is neóessary to give validity to a waiver (Sheldon v. Horton, 43 N. Y. 93; 14 Serg. & Rawle, 241). Parties have a perfect right, orally or by acts, to alter or to waive any of the terms of an original written agreement (Van Buskirk v. Stow, 42 Barb. 10); and where parties waive, or prevent performance of a condition precedent, the parties waiving or preventing cannot avail themselves of such non-performance to relieve themselves from their own obligation (Moses v. Bierling, 31 N. Y. 462). The doctrine of waiver has also been fully recognized in .insurance cases, as to preliminary proofs; thus, the insurer may waive in whole or in part, the preliminary proofs (43 Barb. 351; 9 How. 390), and their waiver in effect strikes the condition out of the contract. The waiver need not be express; it may be inferred from the acts of the insurers, which evidence a recognition of liability, or from their denial of obligation exclusively for other reasons (57 Barb. 518; 5 Wr. 161). If the refusal to pay the loss is put upon grounds other than the insufficiency of the notice or proofs furnished, the insurers will be held to have waived objections of that character (9 How. 390; 16 Wend. 385; 3 Comst. 122; 6 Cush. 342, 440 ; 25 Ill. 466), and so the condition that the loss is payable in sixty days, may be waived (34 Conn. 461; 14 Mo. 220; and see the insurance cases above cited, collected and.asserted,' in Fland. on Ins. 541). (e.) The question of waiver on the evidence, was one of fact, and the finding of the referee thereon is conclusive in plaintiff’s favor.
   By the Court.—Freedman, J.

It was conceded by both parties on the argunient that, if the contract between Hoffman, the drawer, and the defendant, the drawee and acceptor, has been so far performed as to entitle- Hoffman as contractor to the fifth payment, plaintiff, as payee named in the order, has an undoubted right to recover,- because such order and its acceptance operated as an assignment by Hoffman to the plaintiff of the fund in defendant’s hands. The main question, therefore, is whether the said fifth payment has been earned by the contractor according to the terms of the contract.

The principle of the common law, which always permitted men to manage their own affairs and to make their own contracts, provided they involved nothing immoral or illegal, which is fully applicable here, also requires that the understanding of the parties is to be gathered from the terms of the contract, and that their rights are to be determined by the language of the contract. Though the terms are hard, parties will be held concluded by their contract (Sherman v. Mayor, &c. of New York, 1 N. Y. 316; Pike v. Butler, 4 Id. 363). A condition precedent must be strictly performed, and if a person, by contract, engages to perform an act, performance is not excused by inevitable accident (Oakley v. Morton, 11 N. Y. 25; Norton v. Woodruff, 2 Id. 153). So, when the time for the payment of money is to happen after the performance of that which is the consideration, no right of action accrues for the money until' the consideration is performed, for a party not fulfilling his part of the contract cannot insist that it shall be performed by the other party (Grant v. Johnson, 5 N. Y. 347 ; Pike v. Butler, 4 Id. 363). In such case full performance is a condition precedent to the right of payment upon the contract. Substantial performance is not enough when the person, for whom the work was done, has neither voluntarily accepted it, nor waived a faithful performance of the contract (Pullman v. Corning, 9 N. Y. 93).. This doctrine was reaffirmed in Smith v. Brady, 17 N. Y. 187, where it was held by Comstock, J., with the concurrence of all the judges, that the rule is well settled with us, that a party may retain without compensation the benefits of a partial performance, where from the nature of the contract he must receive such benefits in advance of a full performance, and by its terms or just construction he is under no obligation to pay until the performance is complete.

The last named case has been followed as an unquestionable authoritative exposition of the law of this State upon the doctrine referred to, in Cunningham v. Jones, 20 N. Y. 486; Bonesteel v. Mayor, &c., 22 Id. 162 ; Catlin v. Tobias, 26 Id. 217 ; Walker v. Millard, 29 Id. 375; Husted v. Craig, 36 Id. 223 ; Harris v. Rathbun, 2 Keyes, 319 ; Jenkins v. Wheeler, 3 Id. 654.

In view of this repeated, indorsement it will not be deemed out of place to notice more fully the remarks of Comstock, J., in Smith v. Brady (supra), as to the rights of the parties to a building contract. He says:

“The owner of the soil is always in possession. The builder has a right to enter only for the special purpose of performing his contract. Each material as it is placed in the work becomes annexed to the soil, and thereby the property of the owner. The builder would have no right to remove the brick or stone or lumber after annexation, even if the employer should unjustifiably refuse to allow him to proceed with the work. . The owner, from the nature and necessity of the case, takes the benefit of part performance, and therefore, by merely so doing, does not necessarily waive anything contained in the contract. To impute to him a voluntary waiver of conditions precedent from the mere use and occupation of the building erected, unattended by other circumstances, is unreasonable and illogical, because he is notin a situation to elect whether he will or will not accept the benefit of an imperfect performance. To. be enabled to stand upon t,he contract, he cannot reasonably be required to tear down and destroy the edifice if he prefers it to renmin. As the erection is his by annexation to the soil, he may suffer it to stand, and there is no rule of law against his using it without prejudice to his rights. ..... The law does not adjudge that a mere silent occupation of the building by the owner amounts to a waiver, nor does it deny to him the right so to occupy and still insist upon the contract. The question of waiver of the condition precedent will always be one of intention to be arrived at from all the circumstances, including the occupancy. To conclude, there is, in a just view of the question, no hardship in requiring builders, like all other men, to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true that such contracts embrace a variety of particulars, and that slight omissions and inadvertences may sometimes very innocently occur. These should be indulgently regarded, and they will be so regarded by courts and juries. But there can be no injustice in imputing to the contractor, a knowledge of what his contract requires, nor in holding him to a substantial performance. ... If he fails to perform when the requirement is plain, and when he can perform, if he will, he has no right to call upon the courts to make a new contract for him ; nor ought he to complain if the law leaves him without remedy.”

According to the well settled law of this State, therefore, the fifth payment did not become due and payable under the contract in the case at bar, until the trimmings had been all done and the doors all hung in the manner required by the specifications, which form part of the contract. The doing of all the trimmings and hanging of all the doors were made by the voluntary act of the contracting parties a condition precedent to the payment of the money. The consideration for the payment is entire and indivisible, so that the money payable as such fifth installment is neither apportioned by the contract, nor capable of being apportioned by a court or jury. Plaintiff rested without proving performance of the work which would have entitled Hoffman to such fifth payment. t Consequently plaintiff’s order was not shown to have become due, and the referee erred in denying defendant’s motion for a dismissal of the complaint, unless the evidence clearly showed that the defendant had accepted the work actually done as a full performance, or had waived a strict performance of the contract, a question, which -1 shall notice more fully hereafter.

Again: it appears without contradiction from the evidence of the entire case, that Hoffman, the contractor, in the early part of April, 1868, ceased work, before the fifth payment became due; that on the tenth of that month the defendant by written notice insisted upon performance of the balance of the work then unfinished; that Hoffman did not return to finsh the work, and that defendant was compelled to finish it himself; that at the time of Hoffman’s abandonment of the contract, there were no doors hung on the basement and first or parlor floors- of either house, and that a considerable part of the trimmings remained undone. It is, therefore, not a case of imperfect performance or of a defect in the manner of performance, but a clear case of non-performance of the contract, and consequently the referee erred in finding, as matter of fact, a substantial performance, which entitled Hoffman to the payment of the fifth installment, and, as matter of law, that plaintiff is entitled to judgment against the defendant, and the judgment must be reversed, unless the further finding, that after the abandonment of the contract, the plaintiff caused the order to be presented to the defendant for payment, who waived the strict performance of the contract by Hoffman, and promised and agreed to pay the amount called for by said instrument to the plaintiff, is not only supported by the evidence, but sufficient in law, when considered with the other real and undisputed facts of the case, to sustain it.

The evidence upon the question of waiver consists of—

1. The testimony of Edwin Bradbrook, a witness and employee of the plaintiff, who .testified that on or about April 10, 1868, he presented the order or draft to the defendant for payment, and that defendant at that time told him that he, defendant, had no money, but that he expected some on the first or second of May, and that he would call down and see the plaintiff and settle with him; that during said conversation defendant did not say anything about Mr. Hoffman not progressing with the work;
2. The testimony of Leroy Clark, a witness called on behalf of the plaintiff, who testified as follows: “I remember calling on the defendant about April 15, 1868; I presented the ‘Exhibit Ho. 1’ to him; it was the same as it now is, with the exception of the referee’s mark; I asked him if he could pay us the amount of it, or words to that effect; he said, he could not pay it then—the work was not done, the doors were not hung, that Mr. Hoffman had disappointed him; he said he could not pay it then, as he hadn’t the money'; he would pay it the next week ; he would give Mr. Crane a check for it; he said the parlor doors were not hung; I went into the building at the time and saw the parlor doors standing in the room; I went through the houses ; he spoke of nothing but the doors being unhung and incomplete; ’ ’ and,
3. The further testimony of the witness Edwin Bradbrook to the effect that he saw the defendant • again on May 9 following, and that defendant at that interview stated that the contract was not yet fulfilled, that Hoffman had abandoned his contract and had put him, the defendant, to extra expenses.

Assuming this testimony to be true, it falls very much short of establishing a waiver within the rule laid down in Smith v. Brady, 17 N. Y. 189 (see also Catlin v. Tobias, 26 Id. 217). According to it the first interview took place on or about the date of defendant’s notice to Hoffman, wherein defendant insisted upon full performance, at a time, therefore, when defendant had a right to expect that Hoffman would come and complete his contract, and defendant’s promise then made must be deemed to have been made with reference to such expectation. The conversation with Leroy Clark took place about five days later. There is no evidence that by that time defendant had become aware that Hoffman had really abandoned his contract, and his naked promise, made under such circumstances, to send a check in the course of a week, coupled with the remark that doors were not yet hung, cannot be twisted into a waiver of performance by Hoffman. At the second interview, which occurred between the witness Bradbrook and defendant on May 9 following; the defendant distinctly fell back upon his legal rights under the contract.

This testimony is not only insufficient in itself to establish inferentially a case of waiver, but it is flatly contradicted by that of the defendant, who positively denied having made any such promise as testified to by the witnesses named, and in terms equally positive testified that he told both said witnesses that he would not pay, because the work had not been finished.

The question of waiver in this case not being a question of law but of fact and intention between the contracting parties, namely Hoffman and defendant, to be determined upon all the circumstances of the case, and the evidence being wholly insufficient to establish such fact, the referee clearly erred in finding that such waiver had taken place.

For the foregoing reasons the judgment must be reversed, the order of reference, vacated and a new trial granted, with costs to appellant to abide the event.

Barbour, Ch. J., and Sedgwick, J., concurred.  