
    Fallon v. Lawler.
    
    
      (Court of Appeals,
    
    
      Filed April 13, 1886.)
    
    1. Contract—To remove building and build new one—When amended
    CONTRACT WILL WAIVE DEFECTS IN ORIGINAL.
    Where the plaintiff agreed orally to remove a building and build a new one in its place, the plans and specifications not being signed, and after the work was partially done, defendant refused to allow plaintiff to go on, claiming that plaintiff was not doing the work according to the plans. Afterwards defendant's architect examined the work, made a memorandum of the defects, and the necessary work whereby plaintiff could remedy them, which was agreed to by the parties, and plaintiff again undertook to do the work, and was again stopped by defendant, he demanding a reduction of $500 on the contract price, and that a claim of his should be paid. Held, that, it being the fau.t of the defendant that the new contract was not carried out, he was liable for damages and was estopped from claiming that the contract was not carried out.
    3. Same—Consideration.
    From the fact that plaintiff set men at work to remedy the defects, it may be implied that he gave up other work to do this, and so under the circumstances there was a sufficient consideration for the last contract.
    3. Pleading—Complaint—Amended contract not set forth.
    Although no new c ontract was alleged in the complaint, as the evidence regarding it was introduced without objection, and was one of the m in issues tried, the complaint will be regarded as if amended on that point. It is too late to raise this objection on appeal.
    Appeal from order of general term, reversing judgment of special term in favor of plaintiff.
    
      Calvin Frost, for appellant, John Fallon.
    
      Frederic A. Ward, for respondent, Eosana Lawler.
    
      
       Reversing 33 Hun. 66, mem.
      
    
   Miller, J.

As the judgment in this case was reversed by the general term upon the facts as well as the law, we are called upon to determine, not only whether there was any error of law, but whether the decision of the trial court was clearly contrary to the evidence. The testimony on the trial shows that the parties entered into an oral contract by which the plaintiff agreed to remove a building to the rear of a certain lot, put a cellar under it, and a roof on it, and build a three-story brick building on the front of the lot. The terms of the contract were expressed in plans and specifications which were not signed by either party. After the building was removed and the contract partially performed as to the brick building, the work was stopped by defendant’s order. We think it must be assumed that when the defendant refused to permit the plaintiff to proceed with the work on the 2d of October, 1876, the plaintiff had failed in several particulars to perform the contract made by him with the defendant according to the plans and specifications. As matters then stood by reason of the plaintiff’s failure to fulfill the contract, he could not have recovered of the defendant the value of the work which had already been done, and it was a good defense to this action up to that time that he had failed to perform the contract according to the agreement as required by the plans and specifications. Immediately after this the defendant selected an architect to examine the work, who found the contract unperformed in several respects, and made a memorandum of the defects, and a list of the work which was to be performed by the plaintiff to remedy the defects, which was accepted and agreed to by the parties. The plaintiff then undertook to do this work, and was again stopped by the defendant.

The question then arises whether the new arrangement which was entered into, and which the plaintiff desired to perform, was a waiver by the defendant of performance by the plaintiff of the original contract. This agreement conceded the defects therein mentioned, and, had it been carried out, would have operated, no doubt, as a waiver of any claim arising by reason of such defects. It would reinstate the original contract, with the modifications which had been agreed upon. The evidence shows that the work had barely been commenced under the new agreement when the plaintiff and his men were ordered therefrom by the defendant, who insisted that the contract price should be reduced $500, and a disputed claim of the defendant paid before the work should proceed. This demand was refused by the plaintiff, and the work stopped. The plaintiff afterwards again and again asked to be permitted to finish the work as the architect had said it should be done, and he offered to do so, but the defendant refused to allow him to go on. It was, therefore, the fault of the defendant that the plaintiff did not proceed in accordance with the new arrangement and complete the work, and if the agreement made was obligatory upon the parties, no reason exists why the plaintiff should not recover for the value of the work which he actually performed.

The defendant claims that the new agreement was without consideration, and the court at general term holds, in its opinion, that an agreement that certain omissions should be supplied, and that upon this being done it should be deemed a full performance, after default as an executory contract, would rest upon no valid consideration. There was evidence upon the trial showing that the plaintiff had set men at work to perform what was required under the agreement to remedy the defects, and several of them were at work for that purpose when they were stopped by the defendant. Such being the fact, it is fairly to be implied that the plaintiff may have given up other work to fulfill the engagement he had entered into with the defendant. He had thus expended some money in the performance of the work, and the contract was in the course of being executed. The original contract, as well as the new agreement, was by parol, and the latter, being founded ■ oil the former, having been, to some extent at least, performed, there was, under the circumstances, a sufficient ■ consideration for the contract.

It should not be overlooked that by the last contract the time of performance of the first contract would necessarily be extended. The work had been stopped some weeks,

. and it would require, as a matter of course, some additional time to complete the same. The new agreement, therefore, may well be regarded as relating to the time of performance, and it is a well-settled rule that the extension of time for the performance of a contract need not necessarily be in writing, and may be by parol, and that no express consideration is required to make it valid. In this view of the case, it cannot be claimed that the entire contract was invalid for want of consideration. Independent, however, of the views already expressed, as the time for performance of the contract had not expired, and conceding the plaintiff had failed to perform the same, as the defects had been pointed out and agreed upon, it is not apparent why he had not the right to perform and to supply such defects within the period of time fixed by the contract. He offered to do so, and was ordered to stop, and was prevented by the interference of the defendant. As the fault of the defendant operated to produce the failure to fulfill on the part of the plaintiff the terms and conditions in the contract, she is estopped from claiming that it was not performed.

Some stress is laid upon the fact that the plaintiff commenced work at the top of the building, instead of at the bottom, as directed by the architect. This objection would seem to be too trivial to avoid the effect to be given to the fact that the plaintiff had offered and attempted to perform the work in accordance with the terms of the new agreement, and as directed by the architect, and at most had made a very trifling mistake in selecting the portion which should first be done.

It is objected that no new contract was alleged in the ■ complaint, and that there was no issue respecting it in the pleadings, and it is said that the finding of the referee that 'the parties made a new agreement does not express the issue tried by the parties. It is no doubt true that the new contract is not within the issue made by the pleadings. The evidence relating thereto was, however, introduced upon the trial without any objection being made to the. same, and it was one of the main issues tried before the-referee. If the objection had been urged upon the trial, the complaint could have been amended, upon application, so as to meet the changes made by the evidence introduced;, or at the close of the case, upon motion, an order could have been entered that the complaint be regarded as amended in accordance with the facts proved. Upon appeal this may be regarded as having been done, and it is. too late now to raise the objection urged.

The finding of the referee that the plaintiff performed the work according to the agreement of the parties; that, the work was done, and the materials furnished were in accordance with the plans and specifications, except as the same were modified or changed by the parties during the-progress of the work,—is not, perhaps, standing alone, strictly accurate; but this finding is not sufficient to-authorize a reversal of the judgment. It may be taken in connection with the finding that, by the subsequent agreement, the plaintiff and defendant agreed to the modification of the plans and specifications, and it was then agreed that the contract, as thus modified, should be completed under ■ the supervision of the architect, as well as some other findings of the referee sustaining the plaintiff’s right to recover; and, as thus considered, the whole may be-'regarded as sufficient to sustain the judgment.

Some objections are urged as to other defects not enumerated in the memorandum made by the architect. The testimony in regard to these was conflicting, and it cannot be said that there was such a preponderance in favor of the-defendant as to authorize the conclusion that the referee erred in his findings that the plaintiff had fulfilled, the contract as modified. In fact, after the parties had entered into an agreement that the defects mentioned in the architect’s memorandum, as already stated, should be remedied, it was too late to urge that others existed sufficient to authorize a repudiation of the contract by the defendant.

A careful perusal of the testimony and an examination of the case leads to the conclusion that the findings of the referee were, upon the whole, fully sustained by the weight, of the evidence.

Some questions are made as to the admissibility of evidence upon the trial, but we are unable to discover any error in the rulings in this respect.

The order of the general term should be reversed, and the judgment of the special term affirmed, with costs.

All concur, except Rapadlo, J., absent.  