
    Louis J. Zimmermann, Respondent, v. George W. Loft and Ely J. Rieser, Appellants, Impleaded with Frank L. Blom, Respondent, and William R. Jewesson, Defendant.
    First Department,
    May 8, 1908.
    Mechanic’s lien — performance of unaccepted contract — complete contract binding — personal judgment against contractor — damages — interest.
    Where a written proposal to a contractor to do certain work and furnish materials at a specified price as a sub-contractor was not accepted, but a subsequent complete agreement at a lower price was entered into between the parties, the work to be done according to the plans and specifications, with some exceptions, the sub-contractor having filed a mechanic’s lien is not entitled to recover without proof showing substantial performance of the second contract; he cannot recover on the theory that he had performed according to the terms of his original unaccepted proposal.
    It is immaterial that under the terms of the second contract the sub-contractor was required to furnish more labor and material than that covered by his prior proposal, for even though the contract might have been reformed on the ground that it did not clearly express the intention of the parties, it will be enforced according to its terms in the absence of such reformation.
    One who furnishes labor and materials to a sub-contractor and has filed a mechanic’s lien against the owner and his immediate contractor is not entitled to a personal judgment against another contractor with whom he had no relations.
    Where in an action to foreclose a mechanic’s lien a claim for extra work is unliquidated and certain deductions must be made by reason of a failure to complete the contract, there is no right to interest.
    Appeal by the defendants, George W. Loft and another, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Blom, entered in the office of tire clerk of the county of Dew York on the 6th (jay of December, 1906, upon the decision of the court rendered after a trial at the Dew York Special Term.
    
      Paul Armitage, for' the appellants.
    
      Frank M. Avery, for the respondent.
   McLaughlin, J.:

The defendant Loft had a lease of a certain building in the city of Dew York, and desiring to make alterations therein, entered into a contract with the defendant Rieser to furnish the materials and do the work according to certain plans and specifications which had previously been prepared. Rieser then entered into a contract with the defendant Blom to furnish a part of the materials and do a part of the work, and he, in turn, entered into a contract with the plaintiff to do the iron work. Plaintiff, claiming to have performed his contract, and not having been paid therefor, filed notice of a mechanic’s lien against Loft as lessee and Blom as contractor, and this action was brought to foreclose such lien and for a sale. Blom, having also filed notice of a mechanic’s lien against Loft as lessee and Rieser as contractor, was made a defendant. He interposed an answer, in which he asked that his lien be foreclosed and that a sale be had. Loft and Rieser interposed separate answers, each denying the material allegations of the complaint and the latter also alleging payment in full to Blom of any and all sums due him under the contract, and setting up, as a counterclaim, his failure to perforin by reason of which Bieser had been damaged to the amount of $539.50, for which sum judgment was demanded against Blom. The validity of the counterclaim was put in issue by appropriate replies. The court found in favor of the plaintiff and also in favor of Blom, and directed a foreclosure and sale. Judgment was entered to this effect, from which Loft and Bieser have appealed.

At the trial the principal issue litigated was whether Blom had performed his contract with Bieser, it being conceded — at least it was not contested — that if he has, plaintiff was entitled to recover.

Upon this issue much evidence was introduced. The conclusion at which I have arrived renders it unnecessary to review this evidence at length, for the reason that the trial proceeded upon an erroneous theory, and the finding that Blom had fully performed his contract, or at least to such an extent as entitled him to recover, is not only contrary to the allegations of his'answer, but unsupported by the evidence.

It appeared that Blom made a proposal to Bieser in the form of a letter, dated April 20, 1905 (the date in the record of this letter is April thirtieth, but it is conceded by counsel for all of the parties that this is an error and should have been the twentieth), to do certain work and furnish certain materials, which he specified, for the sum of $3,020. The proposition thus made was not accepted and a meeting was then had between Blom and Bieser’s representative for the purpose of reducing the amount of the bid by omitting certain things included in the proposal. This meeting resulted in, an agreement by which Blom was to furnish certain materials and do certain work for $2,450. The agreement was in the form of a written proposition from Blom to Bieser, dated the 24th of April, 1905, and accepted by the latter on that day. By this agreement Blom undertook to make all alterations and furnish new work set same in position, all as called for on plans" and specifications, anything omitted in the specifications and marked on plans or vice versa will be considered as part of this contract * * * ” except certain specified items which were not included. Then followed a provision to the effect that the work was to be done to the satisfaction of an architect named, whose decision was to be binding upon both parties. At the time the agreement was signed the specifications referred to therein were produced, upon which Blom wrote the words: “ Accepted, Frans L. Blom.” The plans were also produced. The contract thus made was complete in itself, definite as to terms, and 'not in any respect ambiguous, and to entitle Blom and his sub-contractor, the plaintiff, to recover proof had to be given showing a substantial performance, except in so far as the same had been waived or modified by subsequent agreement. This fact was appreciated by counsel for the plaintiff, as appears from the allegations of the complaint alleging substantial performance except in so far as the same was waived, and also by Blom in the answer interposed by him. The agreement of April twenty-fourth is referred to and made a part of his answer, and he alleges full performance with the exception “ of furnishing said store fronts and hardware so as aforesaid omitted by mutual agreement, and with the exception of hanging four doors and affixing certain hardware.”

At the trial no effort seems to have been made towards establish? ing that Blom had in fact performed this contract. The evidence is clearly to the contrary. Indeed as to many of the items — which were a substantial part of the contract — the fact is not disputed that he did not furnish the materials or perform the work called for in the specifications. Blom knew that the specifications were a part of the contract. He testified : “ The purpose of putting my signature to these specifications and saying ‘ Accepted by Frans L. Blom ’ was on the understanding that I was to do what is called for there.” notwithstanding the contract and a failure to show performance plaintiff has been permitted to recover, and also Blom, upon the theory that the latter furnished all the labor specified in his proposal of April twentieth', except such as was thereafter omitted. The proposal of April twentieth had nothing to do with the question to be determined. That proposition was rejected and was so .understood by Blom himself. Referring to this letter he testified : “ That first letter was absolutely not part of my contract; therefore, I never considered it.”

There is, therefore, no basis for the finding that the materials to be furnished and the labor to be performed by Blom were those which he had specified and set forth “ in his proposal of April 20th, 1905, * * * less certain labor and materials which, by mutual agreement, * * * had been agreed to be omitted therefrom.” The exception to this finding is well taken, and the judgment being predicated upon it, makes a reversal necessary.

Plaintiff’s counsel contends that to construe the contract as above indicated required Blom to furnish more materials and do more work than he would have been required to furnish or do under the proposition of April twentieth. That may be, but it is no reason why an erroneous construction should be put upon the contract, the terms of which are clear and which was deliberately entered into. If the contract as signed does not clearly express the agreement of the parties, that may be a reason why it should be reformed, but until reformed it is the duty of the court to enforce it according to its terms.

Inasmuch as there must be a new trial, it may not be out of place to call attention to the fact that the plaintiff was not entitled to a personal judgment against Bieser. (Gilmour v. Colcord, 183 N. Y. 342.) He had no relations with him. His contract was with Blom, and while he might be entitled, under certain circumstances, to a personal judgment against the latter, he could not obtain one against the former.

Mor do I think, under the facts, that Blom was entitled to interest. The amount claimed for extra work was unliquidated, and concededly certain amounts had to be deducted from the contract price by reason of Blom’s failure to complete the Contract. Both of these amounts could only be ascertained by proof at the trial. (Excelsior Terra Cotta Co. v. Harde, 90 App. Div. 4; affd., 181 N. Y. 11; Fox v. Davidson, 111 App. Div. 174.)

The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellants to abide event.

Ingraham, Laughlin, Houghton and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.  