Trubenback v. Nelson

this testimony, the said building contract, bearing said date and fixing said sum, was introduced in evidence; but the plaintiff testified that the defendant told her that Castin had given him the job for $2,800, and that subsequently to the making of the contract said defendant promised and agreed to pay her $100 on account of her claim.

Two errors of law are urged as grounds for reversal of the judgment: (1) The plaintiff’s counsel requested the court to charge as a matter of law that the time limit mentioned in the said offer of the defendant to Castin had no bearing on the plaintiff’s claim. The ■court so charged, and defendant took an exception upon the ground that the contents of said offer, which was an exhibit in the case, must be considered by the jury as a matter of fact. (2) That the action being on a special contract, for an agreed price of $200, the verdict should either have been for that amount or for the defendant.

[1] 1. It appeared from the evidence that the said offer from the ■defendant to Castin was the basis of the agreement between plaintiff and defendant, and constituted a part of the transaction between them. While the instrument upon which the suit is brought is entirely separate and apart from said offer and complete in itself, yet it is well settled that, where several instruments are made a part of one transaction and relate to the same subject-matter, they may be considered and construed together. Knowles v. Toone, 96 N. Y. 534 ; Benton v. Martin, 52 N. Y. 570 ; Meriden Britannica Co. v. Zing-sen, 48 N. Y. 247 , 8 Am. Rep. 549 ; Rogers v. Smith, 47 N. Y. 324 ; Mallory v. Tioga Railroad Co., 5 Abb. Prac. (N. S.) 420; French v. Wallack, 12 N. Y. St. Repr. 159 , 162. This may be so even if the several instruments are not between the same parties. Rogers v. Kneeland, 10 Wend. 219 ; Turver v. Field, 13 N. Y. St. Rep. 12 . Under this general rule the said written offer from defendant to Castin should have been allowed to be considered by the jury in its entirety; that is, including that limit clause (Gail v. Gail, 57 Misc. Rep. 545 , 108 N. Y. Supp. 647 , 649), upon the question whether it was understood and agreed between plaintiff and defendant that her right to the $200 depended, not only upon his receiving a contract to build the house for $2,800, but also that he was to receive the contract by September 24, 1910. White v. Hoyt, 73 N. Y. 505 . The court committed reversible error in taking the time clause of this offer away from the consideration of the jury.

[2] 2. The plaintiff in this action alleged an express promise to ¡pay $200 for the services in question. The defendant’s answer was ■a general denial. There is no allegation as to the value of the services; and the complaint is not upon a quantum meruit, but strictly ■for the specific sum agreed to be paid. This complaint was prepared in form and structure on the special agreement by the defendant to ■pay the plaintiff $200, provided he got the job at the price fixed. 'There was no allegation or count on a quantum meruit. There was mo evidence or proof as to the value of the plaintiff’s services given upon the trial by either side. The case was tried and submitted to the jury upon the theory and assumption that the plaintiff should either recover the full amount of her claim or nothing. Upon such a

contract as is here in question, there can be no recovery on a quantum meruit. The value of the contract was fixed by its own terms. It contained a promise to pay a definite sum, to wit, $200, and this sum was the measure of the plaintiff’s damages in case of a breach thereof. Keystone Pub. Co. v. Roman, 116 N. Y. Supp. 654 , 655. It follows that the-verdict assessing the plaintiff’s damages at $50 cannot be sustained and for this reason should be set aside. For the errors of law pointed out the judgment must be reversed.

[3] It may be well to consider the legal effect of the stipulation contained in the contract between plaintiff and defendant. The payment of $200 is made conditional upon defendant’s getting the job at the price stated in defendant’s written offer to Castin, to wit, $2,-800. This constituted a condition precedent, and the burden was on the plaintiff to show such condition had been performed, as without such performance there can be no recovery. Lorillard v. Silver, 36 N. Y. 578 ; Murray v. Baker, 6 Hun, 264 , 266; McIntire v. Clarke, 7 Wend. 330 ; Keystone Pub. Co. v. Roman, supra; Gail v. Gail, supra; Simon v. Burgess, 71 Misc. Rep. 300 , 127 N. Y. Supp. 147 , 149; Huchberger v. Barsody, 88 N. Y. Supp. 978 , 979. If the defendant did not get the contract to build the house at $2,800, the plaintiff’s case would fall; and so, if the condition contained in the said offer of the defendant to Castin that the building should be started on or before September 24, 1910, was, as a matter of fact, made a part of the agreement between the plaintiff and the defendant, under the rule above referred to, it would in such case be equally necessary for the plaintiff to show that the contract to build was given to defendant within said time limit. The price was a condition precedent, and so would the time limit be, if it were found that the said offer from defendant to Castin was a part of the agreement between plaintiff and defendant. While the defendant testified that the contract was only for $2,700, and he was supported in this way by the testimony of Castin and the written contract itself, yet there was the testimony of the plaintiff that the defendant had stated or admitted to her that he received $2,800; and therefore the question whether the condition precedent as to price had been performed was for the jury.

[4] Inasmuch as no new trial was demanded in the notice of appeal, the case is reviewable on questions of law only (Cromwell v. Hall, 88 Hun, 617 , 34 N. Y. Supp. 1137 ; Bartlett v. Mugett, 75 Hun, 292 , 27 N. Y. Supp. 56 ; Platz v. Burton & Cory C. & V. Co., 7 Misc. Rep. 473 , 28 N. Y. Supp. 385 ); and this reversal is upon questions of law only. A new trial can only be ordered when the judgment is reversed as against the weight of evidence. Liedtke v. Meyer, 137 App. Div. 74 , 76, 122 N. Y. Supp. 95 ; Robischon v. Moore, 135 App. Div. 699 , 119 N. Y. Supp. 252 ; Markel v. Gummer, 84 App. Div. 634 , 82 N. Y. Supp. 1107 ; Tichnor Bros., Inc., v. Barley, 132 N. Y. Supp. 243 , decided 1911, County Court, Nassau county. See opinion filed June 24, 1911, Nassau county clerk’s office. In view of the fact that this reversal is upon questions of law only, the reversal must be absolute, and the court has no power to order a new trial in-the justice’s court. Markel v. Gummer, supra; Gasson v. Atkins, 59 Misc.

Rep. 145 , 112 N. Y. Supp. 224 . Such disposition can be made only where the judgment is contrary to or against the weight of evidence. This has not been changed by the amendment to section 3063 of the Code of Civil Procedure. Said amendment gives to the county court the additional power to modify the judgment of the justice, but the limitation remains that only where the judgment is contrary to or against the weight of evidence a new trial may be ordered by the appellate court. Under subdivision 4 of section 3066 of the Code of Civil Procedure, this court has no discretion over the costs. They are regulated by statute and follow as a matter of course upon a reversal.

Judgment reversed.