Atkinson v. Collins — 30 Barb. 430

Majority

p. 430

Atkinson vs. Collins.

Headnote

Where a party sues for work and labor done and performed, if there is a spe- . cial contract between him and the defendant, not completed or executed as to its terms, the plaintiff should state it, or refer to it, in his complaint. If he fails to do so, the defendant may set it up and urge it in his defense.

If, in an action for work and labor, generally, it appears that there was a special contract, which has not been completed or executed, the plaintiff cannot recover for the work comprised within the special agreement.

In such a case, the plaintiff should set out the special agreement, and allege a partial performance.

MOTION to set aside a verdict, on a case and exceptions, ordered to be heard at a general term.

Wm. R. Stafford, for the plaintiff.

A. R. Dyett, for the defendant.

This action was brought to recover for work and labor performed by the plaintiff for the defendant, in painting ward school house No. 34, in the city of New York. The defendant had made a contract with the school officers of the 13th ward, to furnish and provide all the carpenter’s work and materials for the erection and completion of four wings, and other alterations inside of the main building of said school, including painting and other work; and it was in consequence of this contract that the defendant employed the plaintiff as a sub-contractor for a portion of the work.

The defense set up was, that the work was done under a special contract, and that the work had never been accepted by the superintendent of school buildings, or by the school officers of the ward. There was a claim for extra work, for which the jury rendered a verdict; but for the work, referred to in the contract between the plaintiff and defendant, nothing was allowed; the judge deciding that the only question of fact he should submit to the jury was, as to the extra

p. 431

work. The general rule is, that evidence of services, performed under a special agreement, will not sustain a general count for work, labor and services; but where the terms of a special agreement are consummated—in other words, where it is what the law calls executed—an obligation arises, for which what was formerly known as a general indebitatus assumpsit will lie : that is, where the contract is executed, it would not have been necessary to declare specially on the contract, but the plaintiff may declare, generally, for whatever was alleged to be due for the work, labor and services, without any reference to the contract. Whether this rule applies now'—■ whether, even if the terms of the contract are completed, the plaintiff can allege a general demand without any reference to the contract—is very questionable. The code, which is, generally, deemed to have relaxed the rules of pleading, requires, in many instances, a strictness unknown to pleading in its degenerate days, its precision neutralized by the “ general issue,” and the other laxities existing at the time of the introduction of the code. For example, the code (§ 142) requires that the complaint shall contain a plain and concise statement of the facts, constituting a cause of action. How, where there is an agreement to perform certain work, whether the terms of that agreement have been completed or not, it would seem that the agreement is one of the essential facts constituting the cause of action, and should, it may with great plausibility be urged, be contained, in all. cases, in the complaint. But it is probably unnecessary to discuss this question at present. We shall consider this case, as if the code had not introduced a rule stricter than that which prevailed under the old system.

If, then, there was a special contract between the plaintiff and defendant, and if it was not completed or executed as to its terms, the plaintiff, according to the rule under that system, ought to have stated it or referred to it in his complaint; and not having done so, the defendant’ had a right to set it up, and to urge it in his defense. It is not denied, that a

p. 432

special contract had been duly executed between the plaintiff and defendant, and that it provided, when the graining was done, the plaintiff should receive $165, (one half,) and when the whole was completed and accepted by the superintendent of school buildings and the school officers of the 12>th ward, the plaintiff should receive the remaining $165.

[New York General Term,

November 7, 1859.

It was very important to the defendant that the agreement should contain this provision or condition, because his agreement with the school officers contained one precisely identical; so that, -until the superintendent of school buildings and the school officers accepted the work, the defendant would not be in funds to pay his sub-contractors.. The evidence clearly shows that the work performed by the plaintiff for the defendant never was accepted by those authorities, and that consequently the terms of the agreement were not completed or executed. The plaintiff, then, was properly nonsuited as to the work comprised within the contract; the judge having refused to submit any question in relation -to that work to the jury, on the ground that the complaint did-not refer to it.

If indeed the complaint alleged the contract, there might have been a question of fact for the jury; and that question would be, did the superintendent of school buildings and the school officers accept the work ?

But, under the pleadings in the action, the judge was right in not submitting that question to them, and in effect dismissing the complaint, as to the work under the contract.

The judgment should be affimed, with costs.

Roosevelt, Clerke and Sutherland, Justices.]