
    Peter A. Strack, Resp’t, v. John Hurd, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Contract—Performance.
    Although a contract for the performance of work is an entire one, the law will not compel the contractor to perform all he had agreed to do under it, after the other party has failed on his part to pay the stipulated instalments when they fell due, and while he is in default in such payments. In such case the contractor may recover for the work actually performed at the contract price.
    
      Appeal from a judgment entered upon a verdict at a Franklin county circuit, and from an order denying a motion made upon the minutes of the judge for a new trial.
    
      S. A. Beman, for app’lt; Gordon & Main, for resp’t
   Mayham, J.

This action was prosecuted to recover a balance claimed to be due the plaintiff from the defendant on a contract between plaintiff and defendant for cutting and skidding logs and cutting and piling wood along the track of the ISTorthern Adirondack Extension Railroad.

The complaint alleges that the plaintiff entered into an agreement with the defendant to cut the timber along the right of way of the ISTorthern Adirondack Extension Railroad from Big Marsh, so called, to Tapper’s Lake station, a distance of about eighteen miles, timber fit for that purpose to be cut into saw logs at an agreed price of thirty-five cents per 19-inch standard, to be paid for twenty-five cents per standard when said logs are skidded and accepted by the defendant, and ten cents per standard when the contract was completed, and the remainder of the timber along such right of way to be cut into cord-wood at and for the agreed price of seventy-five cents per cord, to be paid by the defendant as follows: Sixty-five cents per cord when measured and accepted and the balance of ten cents per cord when the contract is completed. The complaint further alleges that the plaintiff under this contract cut 404 cords of wood and about sixty standard logs, admits payment of $272.60, being sixty-five cents per cord for the wood and ten dollars to apply on the logs.

The complaint also alleges the cutting of 202 cords more of wood and sixty-eight standard saw logs, and admits payment thereon of $56.00, but alleges the refusal to pay according to the contract the sixty-five cents per cord for wood and twenty-five cents per log for the logs, and charges that as a breach of the contract of the defendant and claims damages in the sum of $800. The answer sets up the contract substantially as that alleged in the complaint, except that the cord wood was to be cut four feet and four inches long, and that it was to be good merchantable cord wood, and cut and piled in a good merchantable manner, and that the logs were to be skidded at a suitable height to be conveniently loaded on railroad cars, and alleges a breach of the contract on the part of the plaintiff in various particulars, and claims damages to the amount of $200.

The main contention in this case seems to be whether this was an entire contract for the performance of this work, so that a complete performance" was a condition precedent to the liability on the part of the defendant to pay for the same, and, if it was, then which of the parties was first in default in the performance of his obligation.

The complaint alleges that the plaintiff contracted to cut the wood and logs on the right of way for the whole eighteen miles between the swamp and Tupper Lakestation. This would seem to make the performance of this work one entire job, for the performance of which the plaintiff would be liable, and proof o£ performance would be a pre-requisite to plaintiff’s right of recovcovery, unless the failure of the defendant on his part to perform some of the conditions obligatory upon him relieved the plaintiff from full and complete performance. McMillan v. Vanderlip, 12 Johns., 165; Hiram A. Crane v. Herman Knubel, 61 N. Y., 645. But it is insisted by the plaintiff that the defendant was guilty of a breach of the agreement on his part in not measuring and accepting the 202 cords of wood and the sixty-eight logs last cut, and by reason of that failure on the part of the defendant the plaintiff was at liberty to abandon the further performance on his part, and sue for and recover upon the contract price the balance at that time not paid. If the plaintiff was right in this contention upon the facts, the rule of law contended for by him would apply. The law would not compel the plaintiff to proceed with the contract, and perform all he had agreed to do under it, after the defendant had failed on his part to pay the stipulated instalments at the time they fell due, and while he was in default on such payments, Moore v. Taylor et al., 42 Hun, 45 ; 5 St. Rep., 202, and if such default existed, the plaintiff for the work actually performed could recover at the contract price. Whelan v. The Ansonia Clock Co., 97 N. Y., 293. There was a conflict in the evidence whether the work as far as performed was done in accordance with the terms of the contract, and whether the defendant had failed to pay the instalments on the contract as the fell due.

These disputed facts were, we think, properly submitted to the jury under proper instructions from the learned trial judge, and their verdict upon the disputed facts should not, we think, under the evidence in this case, be disturbed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.  