
    John F. Walsh and Lawrence A. Walsh, Copartners in Business Under the Firm Name and Style of J. F. Walsh & Brother, Respondents, v. Howard & Childs, Defendant, Childe H. Childs, Individually and as Surviving Partner of the Copartnership of Robert H. Howard and Childe J. Childs, Doing Business Under the Firm Name and Style of Howard & Childs, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Building and construction contracts — Extra work — Right to additional compensation for extra work — Necessity of having written authority to do extra work.
    Where a building contract contains a provision that no claim for payment for alterations, additions or omissions shall be made unless the order therefor shall be signed by the owner or his duly authorized attorney, the fact that in three instances the owner waived such provision of the contract will not form the foundation for an inference that he waived the provision in a fourth instance, since the waiver, in each case relating to an independent transaction, is applicable to the particular case only.
    In an action to recover for certain extra work in connection with such contract, where it appears that an order was not given as required by the contract, the contractors cannot recover, though the defendant’s manager misled them into doing the work by promising to accept their proposal therefor in the form and man-ner required by the contract.
    Appeal hy the defendant, Ghilde H. Childs, individually, and as a member of the firm of Howard & Childs, from a judgment of the Municipal Court of the city of ¡New York, sixth-district, borough of -Manhattan, rendered in favor of the plaintiffs. The suit was discontinued as against the other defendant sued as “ Howard & Childs.”
    Beardsley & Hemmons, for appellant.
    Valentine Taylor, for respondents.
   Ford, J.

Plaintiffs were constructing and repairing a certain boiler house for the defendant, under a contract in which the following provision appears:

Should the owners at any time during the progress of the work request any alterations, deviations, additions or omissions on this contract, they may do so, but the same shall not in any manner vary or affect this contract or the amount to be paid to the contractor hereunder; and no claims for any payment or allowance shall be made by either party unless the order for such alterations, additions or omissions shall be signed by the owners or their attorney, duly authorized thereto by sealed power of attorney, and the work and the amount to be paid or allowed thereupon fixed and determined by contract signed by the owners or their attorney duly authorized as aforesaid.”

In the course of operations, it seemed that certain work was done which the contractors claim entitles them to extra compensation ; and they sue for the agreed price thereof.

The defense is failure to show written authorization, as required by the contract; but plaintiffs contend that such authorization was waived by the course of dealing and the conduct of the parties. The defendant called no witnesses and the plaintiffs had judgment from which this appeal is taken.

To show waiver,, plaintiffs undertook to prove that other extra work had been done and paid for without written authorization. In one instance, it appears that the plaintiffs submitted to the manager of the defendant a proposal and estimate, written on the letter-head of the defendant, for furnishing and erecting a concrete foundation around a certain pump for thirty dollars. This was left with Barber, defendant’s manager, and a copy of it made and retained by one of the plaintiffs. It is conceded that this work was done and paid for. Plaintiffs put in evidence the copy, which was not signed by them, and the defendant introduced the original which is so signed, bearing on its face the words, accepted, Howard & Childs, Barber.” This is slight evidence, indeed, as to waiver of the contract provision so far as this piece of extra work is concerned.

The second instance in which plaintiffs insist that the defendant waived the contract provision is sought to be proved by a proposal and estimate similarly submitted in writing, which reads as follows:

“(Letter-head of J. F. Walsh & Bro.)
Mew York, May 23, 1907.
“ Messrs. Howard & Childs,
“ 524 West 33d Street, M. Y.
“re addition to boiler house
“ Estimate ..-..... 12" Walls.
“ Gentlemen.— We propose to furnish materials and labor to increase new walls shown on your plans from 8" to 12" as requested by the Building Department, for the sum of $290.00
“ ¡Respectfully' submitted,
“ J. F. Walsii & Bro.
“Die. LAW/J. ¡R. Per L. A. Walsh.
“ O. ¡K¡. 8. M. Barber.”

It will be observed that this was accepted by Barber in writing; but plaintiffs make the point that it shows waiver, in that there is no proof that Barber was the defendant’s “ attorney, duly authorized thereto by sealed power of attorney,” as required by the contract. The burden of showing that he was not rests upon the plaintiffs. They are attempting to show authorization of extra work by one not empowered.to authorize it, as proof of waiver of the terms of the contract, and they must show it. The burden does not shift to the defendant. The authority of Barber in the premises was never questioned, so far as the record shows, while the work was in progressand there is nothing as to whether he had the requisite power of attorney or not. Certainly, no presumption that he did not have such authority arises in favor of the plaintiffs as an aid to them in proving their case.

A third instance of waiver of the contract is sought to be shown by a third written proposal of the defendant introduced in evidence,, relative to the foundation of the boiler house to cost forty-seven dollars. Upon this no written acceptance appears, but the plaintiffs admit in their brief that it was afterward accepted in writing and the work paid for, although previously a verbal estimate had been made to Barber.

This is very slight evidence of a waiver of the requirement of the contract that extra work would be paid for only when done under an independent contract in writing between the parties. All three of the alleged instances of waiver tend to prove rather the consistent observance of that provision than a failure to observe it. All the proposals were made in writing, and two of them were accepted in writing by the manager of the defendant. The third, as introduced in evidence by the defendant, contained upon it Barber’s written acceptance. The unsigned copy of that proposal, introduced by the plaintiffs, alone lacks the defendant’s written acceptance.

It is the fourth piece of extra work with which we are directly concerned on this appeal. A written proposal and estimate of its cost, in practically the same form as that used on previous occasions, was prepared by plaintiffs; but it was never accepted in writing by the owner, his manager, or any one on his behalf. To this suit, brought for the agreed price of the work, defendant interposes as his defense the provision of the contract which plainly says that no extra work shall be paid for, except under an independent contract in writing signed by the owner or his duly authorized attorney. That defense is sufficient to defeat the claim of plaintiffs. Langley v. Rouss, 185. N. Y. 201.

Even assuming that the contract provision was waived in the three previous transactions shown by plaintiffs, the waiver in each case would apply to the particular case only, since each related to an independent transaction. The defendant was at liberty to insist on strict compliance with the contract as to any future transaction of a similar nature, as was held in Gardner v. Clark, 21 N. Y. 399.

It may be that defendant’s manager misled plaintiffs into doing this extra work by promising to accept their proposal in the form and manner required by the contract, as some of the testimony suggests; but damages on that account may not be recovered in this suit.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich and Hendrick, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. •  