
    H. G. Vogel Company, Appellant, v. George N. Reinhardt, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.
    Contracts — when entitled to recover reasonable value of services actually performed — proof tending to show rendition of services necessary to performance — when error to dismiss complaint.
    Plaintiff’s contract for the equipment of defendant’s factory with fire extinguishers at a specified cost provided that if plaintiff’s work should be discontinued by fire or other cause not its fault there should become and be immediately due and payable from defendant on account of the work a sum equal to the value of the materials, labor and services furnished at the date of such discontinuance. Before any part of the equip- • ment was actually attached to the building the factory was destroyed by fire. Held, that under its contract plaintiff was entitled to recover the reasonable value of the services actually and necessarily performed in preparing said equipment and also the value of materials, if any, actually furnished at defendant’s building and destroyed or lost in the fire, and proof tending to show the rendition of services necessary to the performance of plaintiff’s contract prior to the fire and also the value of said services made out a prima facie case and it was error to dismiss the complaint.
    Appeal by plaintiff from a judgment of the City Court of the city of Hew York dismissing the complaint, and from an order denying motion for a new trial.
    David Bernstein (I. Maurice Wormser and David Bernstein, of counsel), for appellant.
    Adolph E. Gutgsell (Adolph E. Gutgsell and George H. Taylor, Jr., of counsel), for respondent.
   Per Curiam.

On or about May 3,1911, the plaintiff made a contract in writing with the defendant for equipping defendant’s factory with a system of fire extinguishing apparatus at a cost of $1,133. 'The agreement provided that if plaintiff’s work should be discontinued by fire or other cause not the fault of the plaintiff, ‘ ‘ there shall become and be immediately due and payable from you [defendant] on account of the. work a sum equal to the value of the materials, labor' and services furnished at the date of such discontinuance.” It was also stipulated that title should remain in the plaintiff to the materials and equipment until fully paid for, and that if it became necessary for the plaintiff to remove any part of the equipment because of default in payment the plaintiff should be paid the reasonable value of installing and removing the equipment and any other expense incurred for loss or injury to the property.

On June 17, 1911, before any part of the equipment was actually attached to the building, the defendant’s factory was destroyed by fire. The plaintiff introduced evidence tending to show the rendition of services necessary to the performance of its contract prior to the fire, and evidence was also given of the value of these services. The defendant claimed that as no part of the equipment was actually attached to the building on June 17, 1911, no materials, labor or services were furnished by the plaintiff within the meaning of the contract. The court sustained this view, and at the close' of plaintiff’s case granted defendant’s motion for the dismissal of the complaint.

The plaintiff was entitled to a more favorable construction of the- contract. The agreement is that in the contingency provided for defendant shall pay for the value of the materials, labor and services furnished, and the use of the word “ services ” indicates that in such event the plaintiff’s right should not be limited to the value of the labor performed in the actual annexation of the apparatus to the defendant’s building. It is a fair assumption that the value of the services testified to at the trial, which included the surveying of the property preparatory to the making of the plans, securing the details and preparing drawings of the ■ sprinkler system, entered into the total charge of $1,133 made under the contract; and it is reasonable to conclude from the language used by the- parties that they intended that if the contract was discontinued by the occurrence of a fire the plaintiff should be reimbursed for the actual value of the services and labor necessarily furnished in preparing the -equipment. This would seem to be the result where there is an implied condition excusing performance in a certain event (Butterfield v. Byron, 153 Mass. 517; approved in Dolan v. Rodgers, 149 N. Y. 494), and the language of the parties in connection with the express condition in this case does not indicate a contrary intention. See Hayes v. Gross, 9 App. Div. 12.

In Dickinson v. Gray, 8 S. W. Rep. 876, the contract under construction provided that in the event of the cancellation of the contract of the principal contractor the sub-contractor should be paid for labor done and materials ‘ ‘ furnished ” up to the date of such cancellation; and the Court of Appeals of Kentucky held that the word “furnished” was not equivalent to the word ''delivered; ’ ’ that the right of the sub-contractor to recover for materials furnished was not restricted to such materials as had been delivered, inspected and received at the time of the cancellation of the contract,- but that he was also entitled to be paid for materials procured or prepared to be furnished for the work.

We think that the plaintiff was entitled under the agreement sued upon to recover the reasonable value of the services actually and necessarily furnished in preparing the specific equipment and also for the value of materials, if any, actually furnished at defendant’s building and destroyed or lost in the fire.

The plaintiff made out a prima facie case, and it was error to dismiss the complaint.

Present: Guy, Lehman and Whitaker, JJ.

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