
    James Dunn, Resp’t, v. Henry Steubing, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Contract—Performance—Estoppel.
    A party to a contract containing a provision that it shall not be altered, modified or changed except by a written agreement signed by both parties may, by conduct, estop himself from enforcing the provision against a party who has acted and relied upon such conduct.
    3. Same.
    A contract for excavating four lots provided that the work on two should be finished at a certain time and the other two a month later; that time was of the essence of the contract; that failure to perform in time should operate to defeat the contractor's right to recover on the contract or upon quantum meruit, and that no part thereof or of the covenants could be waived, altered or modified except "by a writing signed by the parties-Before the first two lots were completed, defendant directed plaintiff to stop work thereon and begin on the other two; the amount of excavation was increased at defendant’s request, and the work was continued with defendant’s knowledge after the times fixed, and was completed. Held, that plaintiff having permitted defendant to continue the work, could not insist on the delay as a defense to an action to recover the price of the work.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered on a verdict
    December 11, 1882, the parties executed a written contract by which the plaintiff promised to excavate and remove the rock and earth to the level of the street curb from four city lots before August 1, 1888, for a certain price per cubic yard, which the defendant agreed to pay. On March 13, 1884, the contract had been partly performed, and on that day the parties executed a second written contract which superseded the first, and by which the plaintiff agreed to excavate and remove the rock and earth from the lots to the depth of at least seven feet below the curb for a certain price per cubic yard, which the defendant agreed to-pay. The work on two of the lots was to be finished by May 13, 1884, and on the other two lots by June 13, 1884. The contract contains this stipulation: “It is expressly covenanted that time shall be of the essence hereof, and the failure of the party of the second part fully and fairly to complete all the promises and conditions of this agreement within the time hereby limited for thecpmplet-ion hereof, shall operate to defeat his right to recover under this agreement or for any part of the labor performed hereunder, either in an action on the contract or for services performed on a quantum meruit No part of the conditions of this agreement or the covenants thereof can be waived, altered or modified by either of the parties except by a writing duly signed and subscribed by both parties to these presents, and neither of the parties to this instrument shall at any time urge or contend in any court, of law or equity for a waiver or modification of this agreement, unless such modification is evidenced by writing.”
    Under the defendant’s direction the plaintiff began to excavate the two northerly lots, and continued until April 14, when, by the-direction of the defendant, he stopped work on those lots and began to excavate the two southerly ones. It is conceded that the work was not completed within the time limited. The plaintiff' testified that the work provided for in the contract and certain additional work was completed by the middle of August. The-defendant testified that the work was not completed until November.
    
      Samuel Uhtermeyer, for app’lt; E. Ellery Anderson, for resp’t.
    
      
       Affirming 11 N. Y. State Rep., 721.
    
   Follett, Oh. J.

The sum earned by the plaintiff in excavating and removing material at the price per yard agreed on was-$14,476, and he had been paid $12,363.66, leaving $2,112.84, which he seeks to recover in this action. The defendant insists; that the plaintiff’s failure to perform the work within the time-limited is a defense to the plaintiff’s claim, and that by reason of the failure he is entitled to recover damages to the amount of $2,400, at the rate of $600 per month, for the loss of the use of the property.

The trial court instructed the jury:

1:1 charge you that before the plaintiff can recover in this action he is bound to preve to your satisfaction, either that he performed the agreement of March 13, 1884, and finished the work there provided to be done within the time fixed by that agreement, or that the defendant has consented to or waived the performance of the agreement within the time fixed. Time was of the essence of the agreement between the parties, and the failure -of the plaintiff to fully complete the work within the time limited by the contract for its completion operated to defeat his right to recover in this action, unless you find that the defendant by his ■own acts caused the delay complained of by him.” -¿f if *XP

“ Under this contract the plaintiff was required to have the work completed on the 13th day of June, 1884. He did not. Then there was an obligation upon the defendant; that obligation was this : It was then the duty of the defendant to stop the plaintiff’s work; or, if he allowed him to go on and work without protest, he must pay him for the work that he did; if he wished to insist upon a forfeiture, if he wished to insist upon the strict terms of the contract, it was then his duty so to insist.” w -!f it íí # íJ ^ -S w

“ The defendant makes a counterclaim, and under the view of the law that I have taken, he had the right to let plaintiff go on and complete his work, and then he had the right to say, as he said in this action, I will pay you for the work that you have done for me, but I want the damages that you have caused me by the delay in doing my work as you have agreed to do it. And it is for you to determine from the evidence what those damages were, if he has sustained any damages. If the damages equal the amount that I have stated as due the plaintiff under the contract, then your verdict will be for the defendant If the damages do not equal that amount you will make the computation, and if the damages exceed the amount you will give your verdict for the defendant for such an amount.”

Under these instructions the jury deducted $956.34 from the plaintiff’s claim, and gave him a verdict for $1,154.

The defendant asked the court to dismiss the complaint on the ground that the plaintiff not having performed the contract within the time limited, nor established a written modification thereof or waiver of its performance in the time and manner agreed on, was not entitled to recover. This proposition was presented in various forms during tire trial, by requests to charge and by objection to the admissibility of evidence of performance after the time fixed by the contract.

It is conceded that the plaintiff continued in the performance of the contract after the day fixed for the completion of the improvement with the defendant’s knowledge, and it appears that estimates of quantities of material removed were afterwards furnished by an engineer to the defendant, who continued to make payments on account of the work. It also appears that on defendant’s request the quantity of ■ material to be removed was increased after the execution of the contract.

Upon the failure of the plaintiff to perform by the day fixed, the defendant might have insisted on his strict legal rights and then put an end to the contract, but this he did not do, but permitted the plaintiff to continue the work, and for this reason he cannot now insist on the delay as a defense to an action brought to recover the price of the work. Jewell v. Schroeppel, 4 Cow., 564; Gallagher v. Nichols, 60 N. Y., 438; Lawrence v. Dale, 3 Johns. Ch., 23; aff’d sub nom McNeven v. Livingston, 17 Johns., 437; Leake’s Cont., 850; Pollock’s Cont, 464; 2 Whar. Cont., §§ 887, 888.

A party to a contract containing a provision that it shall not be altered, modified or changed, except by a written agreement,. signed by both parties, may, by conduct, estop himself from enforcing the provision against a party who has acted on and relied upon the conduct.

The judgment should be affirmed, with costs.

All concur, except Haight, J., not sitting.  