
    MARGARET A. CASE, Respondent v. THE PHŒNIX BRIDGE COMPANY, Appellant.
    
      Contract—Complaint, default in answering two causes of action therein, and demurrer as to third—Subsequent proceedings—Referee, trial before and rulings considered—Referee’s power of amendment of pleadings.
    
    In this case, the complaint set up three causes of action; one to recover the amount due on the contract set forth, another to recover for extra work and material, and a third to recover for damages sustained by plaintiff because of the' failure of defendant to furnish a certain structure and materials as agreed, in time for progress of the work, and by the unwarranted delay plaintiff was obliged to keep in service and pay for more days work than she would have paid had defendant performed and fulfilled the contract on its part. Defendant did not answer the first two causes of action, but demurred to the third, and judgment was rendered in favor of plaintiff on defendant’s default on the first two causes of action. Subsequently, on the demurrer being overruled and defendant answering the complaint as to the third cause of action, the issues raised thereby were, by consent of parties, tried before a referee, whose rulings on the trial are the subject of consideration on this appeal. Held, that the judgment entered upon the first two causes of action was an adjudication to the effect that plaintiff had performed all the conditions of the contract, and the defendant on this trial was not entitled to contend against the same.
    The defendant contended that the referee erred in admitting certain evidence on the trial that tended to vary the written contract. The referee admitted the evidence, ruling at the same time that if it tended to alter or modify the contract, he would grant a motion on the part of defendant to strike it out. lX No such motion was made by the defendant. Held, that it . was not error for the referee to admit the testimony conditionally. Also held, that the testimony did not vary the contract. That it related to the time when plaintiff was to commence work on the contract and was not in conflict therewith.
    
      Held, that the referee did not err in refusing to" allow defendant to amend its answer on the trial by setting up a new defence. The referee had not the power to allow such amendment to be made.
    
      Held, that it was not error for the referee to admit evidence on the trial showing the daily rental value of the plant of machinery used by the plaintiff in the work, for such evidence tended to show one element of the damage sustained by the plaintiff through the delay of the defendant in the performance on its part of the conditions of the contract.
    Before Freedman and Truax, JJ.
    
      Decided December 1, 1890.
    Appeal from a judgment entered upon the report of a referee.
    
      Sherman & Sterling, attorneys, and John A. Garver of counsel, for appellant.
    
      Edward S. Clinch, for respondent.
   By the Court.—Truax, J.

The amended complaint contained three causes of action : one to recover the amount due on a contract, another to recover for certain extra work, and the third to recover for damages sustained by plaintiff because of the failure of defendant to perform certain conditions of said contract on its part. The defendant allowed judgment to be entered against it on the first two canses of action, bnt defended as to the third cause of action.

It was held on a former appeal (55 Super. Ct.Rep. 25) that the complaint (as to the third cause of action), in effect, alleged that plaintiff and the force she had under pay to perform the work she contracted to perform upon certain materials and a certain structure, which materials the defendant contracted to furnish asrapidly as the progress of the work required, and which structure was to progress as fast as possible, were kept by the act and neglect of defendant waiting an unreasonable length of time for such materials and structure, and that she was obliged to pay her men for their working time in fifty-five days more than she would have paid them had defendant performed the conditions of the contract on its part, to the plaintiff’s damage.

The printed case shows (see fol. 223) that on the trial evidence was given showing delay on the part of the defendant in furnishing said materials, and evidence was also given that tended to show that plaintiff was damaged by such delay. Under the ruling on the former appeal, a cause of action in favor of the plaintiff against the defendant was proved on the trial.

The defendant contends that plaintiff did not perform all the conditions precedent on her part, and that for that reason the complaint should have been dismissed unless the judgment entered upon the first two causes of action was an adjudication that she had performed all such conditions.

We are of the opinion that said judgment was such an adjudication, for if plaintiff had not substantially performed all such conditions precedent, she would not have been entitled to recover in an action brought upon the contract. That judgment is as controlling as it would have been if it had been entered in an action brought by plaintiff to recover on the first cause of action alone.

The defendant also contends that certain evidence that tended to vary the written contract was admitted on the' trial. The ’ referee said, that he would admit the evidence provided it did not vary or alter the contract, and further said, that he would grant a motion to strike out the testimony in case it tended to alter or modify the contract. No such motion was made. We think that it was not error for the referee to admit the testimony conditionally. And, moreover, the testimony did not vary the contract— it added to the contract a provision not in conflict with the contract upon which the contract was silent, viz., the time when plaintiff was to begin work under the contract.

The referee did not err in refusing to allow defendant to amend its answer on the trial by setting up a new defence. The referee did not have the power to allow such an amendment.

It was not error for the referee to admit evidence showing the price at which the various articles constituting the plant used by plaintiff in doing the work mentioned in the contract could be let by the day. Such evidence tended to show one element of the damage sustained by plaintiff through the delay of the defendant.

The judgment is affirmed with costs.

Freedman, J., concurred.  