
    ALONZO DUTCH, Plaintiff and Appellant, v. ABRAHAM MEAD, Defendant And Respondent.
    Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided December 31, 1873.
    Written Instrument not Signed.—Contract.
    A written instrument, although not signed by the parties, will, if orally assented to by them, constitute the agreement between them.
    Appeal from a judgment entered on the report of a referee.
    The action, as alleged in the complaint, was to recover for work done and materials furnished in the erection of buildings for the defendant, which was alleged to be reasonably worth, etc.
    It was then alleged that before the completion of the entire work, the defendant forcibly prevented the plaintiff from going on and completing the same, and refused to receive a portion of the same.
    As a defence, it was alleged that the work was done under a special contract that the work should be completed on or before the first day of November next thereafter, with good materials and in a good and workmanlike manner; that the same was not completed by the time aforesaid, nor was it done in a good and workmanlike manner,, nor with good materials.
    The referee found as facts:
    First.—That the plaintiff and defendant, in or about the month of" June, 1870, entered into an agreement between them whereby the plaintiff undertook and agreed with the defendant to do, render, perform, and furnish the carpenters’ work, labor, and materials required necessary and proper for the erection and completion of two buildings, one on the north-east corner of Sixth Avenue and Fifty-fifth Street, and the other next adjoining the same on Fifty-fifth Street, in the city of New York, according to, and in conformity with, certain plans and specifications agreed upon between them, and exhibited by the defendant to the plaintiff, and to have the said work and materials done, rendered, furnished and completed on or before the first day of November, in the said year 1870, in a good and workmanlike manner, and of the kind, quality, and description in the said plans and specifications required, called for, or mentioned ; that for the doing, performing, furnishing, and completing of such work, labor, and materials, on or before the said first day of November, 1870, of the kinds, quantity, and quality so required, and called for by said plans and specifications, the defendant undertook and agreed to pay the plaintiff the sum of twenty-two thousand five hundred dollars.
    Second.—That the plaintiff, on or about the tenth day of June, 1870, commenced to do work and perform services' and furnish materials under said contract, but failed to complete and finish the same according to the terms of said agreement between the plaintiff and defendant by the first day of November, 1870 ; that up to the tenth day of said month of November, 1870, there was a substantial failure on the part of the plaintiff to finish and complete the said carpenters’ work and materials upon said houses ; that a very considerable portion of the work and materials required by said agreement to be done, performed, and furnished by the plaintiff to the defendant were not in conformity to the said agreement, but were very defective and inferior in quality to those required by said agreement, and were not, so far as they were supplied and furnished by the plaintiff, substantially in compliance with the said agreement.
    Third.—That the defendant, prior to the first day of November, 1870, had paid to the plaintiff various sums of money, amounting together to the sum of six thousand nine hundred dollars, on account of the moneys agreed to "be paid "by him to the plaintiff for the work, labor, services, and materials to be rendered and furnished by him under said agreement.
    Fourth.—That on or about the tenth day of November, 1870, the defendant took possession of the said buildings, and finished and completed the same in respect to the work and materials which plaintiff, by his said agreement, had undertaken to do and furnish, at a cost beyond the unpaid residue of the price which the defendant had, by said contract, agreed to pay the plaintiff for a complete performance of his said agreement.
    Fifth.—That the defendant never accepted the said work done and materials furnished by the plaintiff as done and furnished in conformity to said agreement between them.
    The referee found as conclusions of law, from the facts so found:
    First.—That the plaintiff was not entitled to recover against the defendant anything in the action.
    Second.—That the complaint should be dismissed, and that judgment should be entered herein for the defendant, and against the plaintiff, with costs.
    The plaintiff’s counsel requested the referee to find that on or before the 9th day of June, 1870, the plaintiff sent to the defendant the following communication, which defendant received, and on the same or the following day notified the plaintiff that he accepted the proposal therein contained, and the said proposal and acceptance constituted the agreement between them, under which both parties acted in the premises.
    New York, June 9th, 1870.
    Mr. A. Mead :
    Sir:—I hereby propose to furnish materials and labor required to finish the carpenters’ part of your two houses, corner of Fifty-fifth Street and Sixth Avenue, for the sum óf twenty-two thousand five hundred' dollars ($22,500).
    Painting, $900 ) These items to be
    Stairs and wainscoting, $2,100 >■ deducted from the
    Tin roofing and cornices, $1,200 ) estimate. A. D.
    Yours, etc.,
    ALONZO DUTCH,
    421, 423 West Forty-second street.
    The referee declined so to find, and the plaintiff duly excepted.
    There were other requests to find facts showing a failure by the defendant to perform; and also of an inability of the plaintiff to complete the work by reason of the acts of the defendant.
    On the trial the foregoing proposal set forth in the foregoing request was offered by the defendant in connection with certain building specifications, and the whole was received in evidence, the plaintiff objecting to the specifications. The defendant also offered a paper purporting to contain the terms of the agreement between the parties respecting the work to be done, etc., but which paper did not bear the signature of either party.
    This latter paper the referee has found contained the agreement between the parties, which was not performed by plaintiff.
    From the judgment dismissing the complaint the plaintiff appealed.
    
      I). M. Porter, attorney, and of counsel for appellants, urged among other things :
    The pretended agreement, on which the defence mainly depends, admitted in evidence under plaintiff’s exceptions, never had any vitality.
    (1.) It was never executed.
    (2.) The defendant never signed and never offered to sign it, nor to deliver it to the plaintiff for that purpose.
    (3.) Plaintiff was anxious to have it signed, and offered to sign it on his part, but defendant secretly took it home with him, and admits he did not choose to sign it.
    (4.) The defendant never assented to it as altered.
    (5.) Plaintiff had made a complete agreement with the defendant, and had partly performed it, before this altered agreement was made at all.
    (6.) There was, then, no mutuality and no consideration to bind the plaintiff, because defendant refused to bind himself (Wood v. Edwards, 19 Johns. 205; Tucker v. Woods, 12 Id. 190; Cook v. Oxley, 3 Term Rep. 853 ; Brown v. N. Y. Central R. R. Co., 44 N. Y. 79).
    As the entire theory of the defence and the report of the referee is mainly based upon this alleged contract, the judgment should be reversed (Collins v. Clark, 54 Barb. 184).
    
      Smith & Woodward, attorneys and of counsel for respondent.
   By the Court.—Monell, J.

The error of the appellant’ s counsel was in supposing that the written paper which was given in evidence could not contain or prove the agreement between the parties merely because it was never signed by them.

A contract for performing work and furnishing materials may be by parol, and need not necessarily be in writing. If the terms of the agreement are reduced to writing, and are assented to by the parties, they as effectually prove the contract as if the paper had been signed. The reducing to writing and signing a contract, is needed only when it might otherwise be affected by the statute of frauds.

The essential of all contracts is the assent of the parties ; and whether it is expressed orally or by writing signed by the parties, in either case it, except as it may or may not be affected by the statute of frauds, becomes the agreement of the parties.

The referee has found in substance as a fact, that the paper introduced in evidence, purporting to contain the terms of the contract, did in fact contain the precise agreement between the parties, and of which agreement the specifications, also given in evidence, formed a part; and if such finding is supported by the evidence, it reduces the questions between the parties to the single one of performance.

There may possibly be some conflict in the evidence as to whether the plaintiff ever assented to the terms specified in the written paper; and it may be that some of the evidence tends, at least, to establish that the plaintiff performed the work only upon the terms contained in his written estimate.

But even if that was so, the finding of the referee would not be disturbed, upon the well-established rule, that findings of fact upon disputed evidence is conclusive.

An examination, however, of the evidence satisfactorily, I think, supports the finding.

The plaintiff testified that he called on the defendant to see if he would take an estimate from him to do the carpenter’s work and furnish the materials. “He appointed a time for me to call at Ms office and get the plans and specifications, from which I made an estimate for the work and materials. I received information from my foreman to call at- Ms office about 8 o’ clock in the evening, as he wanted to see me. He told me that I was not the lowest—that there were five envelopes lying on his desk, and that-1 was one of that five; he had selected mine first of that five. I told him I was ready to ialce the contract according to plans and specifications/ he then asked me if I had any objection to go" on with the work for a few days, to give him time to prepare a contract, as he was in a hurry for some of the carpenters’ materials. The next day I asked him where he wanted the work done in such a hurry.; he said the basement window jambs, lintels, and centres. I told him it was hard to do so much work the next day; he said he must have them. I told him I would endeavor to get them ; to. make my word good I took them there next day. I then went on and furnish ed materials as required, and furnished labor. After I had been to work for a few days I asked whether he had made the contract yet; he said he had not, but. would in a few days, on going to Mr. Jardine’s office, who drew the specifications and plans. I waited a few days longer, and asked him if he had them drawn up ; he told me to go to Mr. Jardine’s office, that he had them there ; he showed me a contract in the legal form, two copies. After reading it over I stated to Mr. Jardine—I read over the contract ; it was composed of seven payments, to make the sum of my estimate $22,500—I told him the only objection I had to signing this contract was that the sixth payment required everything to be done and finished to enable me to get the sixth payment. I told him that the wording of the agreement should be altered; that there was nothing for me to do to get the seventh payment, and the two payments together was too large an amount to accept on finishing the job. I would state that Mr. Jardine said that in the third payment I would receive $4,000 when the building was ready for lathing, but he would not alter them without first consulting Mr. Mead, as they were drawn partially at his request. As soon as I again saw Mr. Mead I spoke about the contract, and told him how I wanted it; he told me he was going to Mr. Jardine’s in a few days and he would attend to it. In a few days I spoke to him again; he said he had, and told me to go there. I went to Mr. Jardine’s office; Mr. Jardine told me Mr. Mead had taken the contract home with him. When I saw Mr. Mead again I spoke to him about executing the contract. He said he did not care for the contract, but would give me all the money l wanted on a two days’ notice ; that his money was all in bonds—all he had to do was to send them down town and get the money for them ; I told him I would like to have the contract executed, as it was better for myself; something turned up and interrupted the conversation, and we separated. He stood on the opposite side of his building in Fifty-fifth Street, in company with a gentleman; I went to him again and spolce about having the contract executed. ‘You two gentlemen’ (meaning me and Mr. McLean, the mason) ‘are anxious to have the contract executed.’ He told us he would give us money on two days’ notice; he did not want to execute a contract.” He further testified that he was to furnish the materials according to the specifications.

The defendant- testified that the plaintiff made an estimate for the work and materials; “that something was said about a contract, and as to the terms; Mr. Dutch inquired how I proposed to pay, or in what amounts, as the work progressed; I told him that I would go to my architect and have a contract made out stipulating the payments ; he assented to it, and said he would call there and see for himself as to the amount; I had stated before who my architect was. I had a conversation with Dutch afterwards, and he told me he had been to Jardine’s office, and found the contract or agreement correct, except as to two payments; he said the third payment was too small, and the fifth or sixth—I am not certain which—was too large ; he said the third payment ought to be $3,000 instead of $2,000, and the fifth or sixth payment should be $4,000 instead of $5,000 ; I told him I would go and see the architect and talk it over with him; I then saw Mr. Dutch afterwards, and requested him to go and see the architect; Mr. Dutch said he was ready and would sign the papers as soon as the payments were altered from $2,000 to $3,000 for the third payment, and the fifth or sixth payment from $5,000 to $4,000, the third payment increased, and the fifth or sixth reduced. I gave instructions to the architect to alter the payments ; the third payment was altered from $2,000 to $3,000, and the sixth payment was altered from $5,000 to $4,000; these alterations were made in my presence ; I informed Mr. Dutch of such alterations ; don’t remember exact date ; I notified him since the day after the alterations ; I notified him two or three times within six or eight days.”

It appears that the only objection the plaintiff offered to the written paper was that the sixth payment was unsatisfactory. In all other respects, it abundantly appears that both parties assented to the terms specified in the written paper, and that the plaintiff worked under the plans and specifications referred to in, and annexed to, and which, it was therein agreed, should form a part of it.

The objection to the payment was afterwards removed by an alteration of the paper.

I think, looking at all the evidence, that the referee was justified in finding that the agrément was such as was contained in the written paper and specifications.

Having thus found, there was an abundance of evidence that the contract had not been substantially performed by the plaintiff. Such performance was a condition precedent to any recovery by the plaintiff (Smith v. Brady, 17 N. Y. R. 173).

But, independently of the fact that the written paper contained the terms of the agreement, the parties all agree that the work was to be done and materials supplied according to the plans and specifications. The plaintiff says so distinctly. Such specification contains the following:

‘£ Materials and Workmanship.—All materials not otherwise specified to be the best of their several kinds, and the work to be executed in a good, workmanlike manner. Any carpenter work or materials shown on-drawings and necessary to complete the buildings, although herein omitted, must be done by the contractor without extra charge.” /

The above having been assented to by both parties, would be enough to let in evidence of poor work and bad materials. And the result would be the same.

We have looked at the numerous objections to evidence, but do not find any such error as would require a reversal of the judgment.

We think it should be affirmed.

Curtis and Sedgwick, JJ., concurred.  