
    Williams et al. v. Boehan et al.
    
    
      (Superior Court of New York City, General Term.
    
    January 29, 1892.)
    1. Building Contracts—Breach—Instructions.
    A bid for a building contract was made and accepted solely on the plans and specifications, and the contractors began work. Soon afterwards the detailed “working plans” were handed them, whereupon they claimed there was a material variance therein from the original plans, involving much additional labor, and refused to continue the work at the contract price. The owner then procured others to do the work at an increased compensation, and afterwards sued the contractors for the difference. The latter counter-claimed for the partial work done by them. Held that, if there was a material variance, the contractors were entitled to recover on their counter-claim, and, there being a fan- conflict of evidence on this point, a refusal to submit the same to the jury was erroneous.
    2. Same—Harmless Error.
    The jury having found, however, that there was no material variance in the plans, this error was not prejudicial.
    Appeal from jury term.
    Action by Bichard Williams and Edward Jones against Daniel Boehan and John T. Martin for,breach of a building contract. Verdict and judgment for plaintiffs, and a new trial denied. Defendants appeal.
    Affirmed.
    Argued before Freedman and Gildersleeve, JJ.
    
      Lachman, Morgenthau & Goldsmith, for appellants. M. Owen Roberts, for respondents.
   Gildersleeve, J.

This action was brought to recover damages for the breach of a building contract. Messrs. King & Small, architects, at the request of plaintiffs, liad prepared plans and specifications, setting forth the character and extent of the mason and stone work required to be done. These plans and specifications were given into the possession of 'the defendants to enable them to estimate the cost of the work, and make a bid therefor. The defendants had no other information as to the nature of the work or materials necessary for the same. Their estimate was based thereon, and they agreed with plaintiffs to do the work for $5,827, “in accordance with said plans and specifications.” The work consisted of alterations for the purpose of changing certain dwellings into stores. The defendants entered upon the performance of their contract by commencing to take down the fronts of the dwellings, and doing such preliminary work as was necessary before the work of reconstruction called for by the plans and specifications began. When the value of the work tints done had reached the sum of $114.15, as defendants claim, the defendants refused to continue the work and complete the contract. At this stage of the work, but prior to such refusal, the “detailed drawings” or “working plans” prepared by the architects were placed in the hands of the defendants. The defendants claimed there was a substantial variance between the “workingplans” and the “elevation plans,” upon which they had estimated; that the “working plans” called for two inches higher sills, an addition of four to four and a half on the cornices, and other variations, involving much greater expense, whereby the value of the work was increased $950. The plaintiffs insisted upon the defendants working according to the plans as altered, and performing the extra work as part of their original contract, without extra compensation. This the defendants refused to do, for the reasons above stated, claiming that this insistence of the plaintiffs was an attempt to arbitrarily modify the agreement without defendants’ consent. The plaintiffs procured other parties to do the work at a cost over and above the contract price with the defendants of $923, and brought this action for a breach of contract, setting up the said sum of $923 as the measure of damages. The answer is a substantial admission of the agreement, an averment that the defendants entered upon the performance of the work thereunder, and an allegation “that the drawings given to them to estimate on, called the ‘front elevation plans,’ were changed in the detailed or ‘working drawings,’ so as to materially increase the amount of work to be done,” and sets up a counter-claim of $114.15 for work done prior to their abandonment thereof. To this counter-claim the plaintiffs duly replied. The trial proceeded for the purpose of determining the rights of the plaintiffs to the former sum, or any part thereof, and the rights of the defendants to the latter sum, or any part thereof.

The defendants had a right to refuse to continue under their contract if the work which the plaintiffs required under the “working plans” was substantially different from that which had been submitted to them, and upon which they made their estimate. If the defendants could establish this, there was no breach of contract on their part, and hence no cause of action in the plaintiffs; and, if this right to abandon their contract was satisfactorily established by a preponderance of evidence, the defendants were entitled to recover under their counter-claim. Was there a substantial variance? This disputed question was submitted to the jury by the learned trial judge, with perfect fairness to the litigants, and with a concise, clear, and accurate statement of the law applicable thereto. The jury were at liberty to, and, under the evidence, properly could, render a verdict for either the plaintiffs or defendants. Their verdict, under the charge, which we have already said was correct in this respect, depended upon the conclusion that they reached as to the degree of variance. The jury found in favor of the plaintiffs, and assessed the damages at $800. But the learned trial judge, in his charge to the question of defendants’ counter-claim, used the following language: “So far as the defendants’ counter-claim is concerned, it seems to me that when they discovered that these plans were different from what they supposed they were, if they did discover that, they had what is called in law a ‘ locus posnitentia¡, ’—place for repentance,—had time for repentance. They could either goon with the contract, or go off. They chose to go off; so I think that is about the end of their counter-claim, and the question gets right back to this question of whether the variations were material,” etc. The defendants duly excepted to this portion of the charge, and also to the refusal of the learned judge to submit the counter-claim to the jury. On the disputed question as to the degree ef variance, the learned judge said in his charge to the jury: “If you find that there was a material and substantial difference, one not justified by the usages and customs of the trade, and that the defendants and their subcontractors were, in consequence, deceived to their injury,—indúced to take a job and make a bid they never would have taken or given,—the defendants had the right to withdraw from their contract, and are entitled to a verdict in their favor.” The defendants were entitled, in this connection, to have their counter-claim submitted to the jury for determination. The court should have instructed the jury substantially as follows: That, in the event of their reaching the conclusion that there was a substantial variance between the “working plans” and the “elevation plans,” and therefore that the defendants were justified in abandoning their contract, it would then be their duty to determine the defendants’ right to the counter-claim. It was error, therefore, on the part of the trial judge, to refuse to submit to the jury the question arising upon the counter-claim as herein stated. But, in view of the facts established by the verdict, the error is not available to the defendants. The verdict established that there was no substantial variance, and that the defendants were not justified in abandoning their contract. From this it follows that the jury never reached the question relating to the counter-claim; and that, even if they had been correctly instructed in respect to it, they would have been bound to disallow the counter-claim. The judgment and order appealed from are affirmed, with costs.  