p. 35have the privilege of furnishing any laborers on said work so long as the said Braceo shall supply good and suitable men, to the satisfaction of the contractor, therefor; that the said Tighe will not permit, in so far as he can prevent the same, any person locating upon the grounds of said work for the purpose of providing board and lodging for the laborers employed thereon; and the right of said Braceo to discharge any laborers who shall board at any place other than that provided by said Braceo, or who shall act disorderly, shall be absolute. And it is further agreed, by and between said parties, that the term of this agreement shall apply to any other work for which the said Tighe shall have the privilege of supplying labor; that any violation of the covenant of this agreement by either party thereto shall render the same void.
“In witness whereof, the said parties have hereunto set their hands and seals at the city of Brooklyn, this 6th day of March, 1890.
“In presence of Benette F. Martella. J. G. Tighe.
The answer does not put in issue any of the allegations of the complaint, but it avers, by way of counterclaim, the making of a contract embracing the same subject-matter as the one set up in the complaint, which it alleges was made in October, 1889, and under which it avers performance on the part of defendant to such an extent that' it alleges there became due to the defendant, by reason thereof, the sum of $1,558.50, and demands judgment against the plaintiff in the sum of $958.50 over and above plaintiff’s claim, with interest. The cause coming on for trial, the allegations of plaintiff’s complaint not being denied, the defendant assumed the affirmative for the purpose of establishing his counterclaim. At the close of his testimony the counterclaim was dismissed, and judgment directed for plaintiff in the amount claimed in his complaint.
Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.James M. G. Smith, for appellant.
Herman Frank, for respondent.
The allegations of the complaint were not put in by answer, and it follows that the court rightly directed a verdict in favor of plaintiff, if it be true that defendant had failed, when he rested his case, to establish his counterclaim. No motion was made to dismiss the answer on the ground that it did not properly allege a counterclaim, and the evidence presented by the defendant to establish it was received without a single objection on the part of the plaintiff. Whether, in view of the fact that none of the allegations of the complaint were put in issue by the answer, some portions of the evidence might have been objected to and excluded, we do not determine. No occasion is presented for a consideration of that question. We are only to inquire, in view of the manner in which the trial was conducted by both parties, whether, at the close of defendant’s testimony,- he had so far established the counterclaim alleged in his answer, or some portion of it, as should have led the court to have denied the motion to dismiss. On this appeal we must, in disposing of that question, deem aH contested facts as established in favor of the appellant, and the most favorable inferences to be drawn from the evidence must be assumed in his favor. Galvin v. Mayor, etc., 112 N. Y. 223 , 19 N.
p. 36transactions had between plaintiff and defendant) that in November, 1889, an agreement which, with the exception of the date, is in the same language as that set up in plaintiff’s complaint, was executed by these parties, and witnessed by Martella.; that subsequently it was engrossed, and on the 2d day of December, two days later, an engrossed copy was executed by the same parties, and in the presence of the same witness. These executed writings were both received in evidence. Defendant testifies that a third paper, which is the same as the others, with the exception of the date, and a copy of which is set up in plaintiff’s complaint, was made and executed at the request of the plaintiff, who assigned, as a reason for the request, that he was in trouble with two men who claimed to be his partners; that he then had a suit pending for the purpose of securing a decree dissolving the partnership; and that he wanted a new agreement made, so that for the subsequent privileges which should be afforded him through the defendant, of obtaining work for laborers to be employed by him, there should be no opportunity for his alleged partners to claim the right to share in the profits which might ensue. For his accommodation, and because of such request, defendant caused another copy of the agreement then in force to be made, and executed by himself and the plaintiff, the only change being in the date. From his testimony, and that of the witness Martella, it appears that the $600 which plaintiff seeks to recover was paid at the time of the execution of the first agreement. It was paid with the understanding that it was on account of an advancement required to be made in order to obtain the right to furnish laborers on section 2 of what is known as the “Water Extension on Long Island for the City of Brooklyn.” That privilege was never obtained, as provided by the agreement But there was another provision in the agreement, by which it was provided that the terms of the first provision should apply to any other work for which the defendant should have the privilege of supplying labor. Under it, the plaintiff obtained, through the defendant, the privilege of supplying laborers to section 7 of the waterworks, running from Maverick to Rockaway. The contractor testified that at defendant’s request he permitted the plaintiff to furnish the Italian laborers, and that the number furnished by him averaged 250 a month for a period of about seven months. The defendant and Martella each testified that plaintiff admitted to them that such a number of men were employed by the contractor through him. In the latter part of April and May, defendant having obtained the privilege of furnishing laborers at St. Johnland, he tendered the right to furnish them to the plaintiff, as by the agreement he had promised. Plaintiff accepted the offer, and put 80 men at work there. Later, and in August, defendant obtained the "privilege of furnishing laborers in some quarries in Connecticut, and this he tendered to the plaintiff, who accepted it. Without a more extended review of the evidence, it is sufficient to say that, under the last provision of the agreement, defendant obtained and furnished to the plaintiff the privilege of supplying laborers under at least three different contractors.
p. 37The point is made that it does not appear that plaintiff was permitted to furnish all the laborers, but only a portion of them, in the instances where he accepted privileges from the defendant. It does appear that other men than those furnished by him were employed on section 7, but those men were more skillful than the laborers of the class furnished by the plaintiff. The contractor, when asked whether plaintiff had furnished all the laborers, said: “Yes; he furnished all Italian laborers. The other men employed were mechanics.” We think the evidence on that subject presented a question for the jury whether there was not a substantial performance of the agreement in such respect.
It was urged on the motion to dismiss the counterclaim, and again here, that the agreement was without consideration. This contention is without force. The promise of the defendant to give the plaintiff the exclusive privilege of furnishing laborers at $1.50 per day on the work named, and all other work where he should have the privilege of supplying labor, was the price for which the promise of the plaintiff was bought to pay defendant $50 a month for each 100 men so employed. The consideration was executory, the counter promise, and not performance, constituting the consideration.
'And, the contract being founded on a good consideration, there remained for the defendant to show substantial performance on his part as a basis for the recovery of any sum claimed, or at least substantial performance of everything he had promised to do which the plaintiff had not waived. Now, the agreement represents the parties as having in mind a desire and intention to include within it (1) provisions relating to all the laborers to be employed on section 2 of “Water Extension on Long Island for the. Oity of Brooklyn ;” (2) all labor to be employed on any other work for which defendant should obtain the right to furnish laborers. While the specific work which was first made the subject of agreement was probably the inducing cause of the making of the contract, and not unlikely may have been regarded by both parties as of more moment than the other, still, the other provision was substantial, and, although it occupies but a few printed lines, the provisions of the clause preceding it are so incorporated into and made a part of it that it must be treated as if written substantially in these words:
“Now, in consideration of the premises, it is agreed between the parties that Braceo shall have the exclusive right to supply all the laborers needed on any work for which Tighe shall have the privilege of supplying labor, and shall have the sole and exclusive right to board and lodge such laborers. * * * And it is agreed that Braceo shall supply good and able-bodied men, and to the number required by the contractors, at the agreed wages of $1.50 per day; that said Braceo shall pay to the said Tighe, every month, the sum of $50 for each one hundred men so employed, which shall be in full for all his interest in supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Braceo alone.”
Now, it may well be that these two subjects of agreement are so far interdependent that a refusal to perform either would absolve the other party from any obligation to pay for that which had been performed and accepted without knowledge on the part of the accepter of the inability of the other contractor to make full per
p. 38formance. Still, the two subjects are so far divisible that if performance be waived, by the party entitled to demand it, as to one provision, and accepted as to the other, a recovery may be had under the contract for that which was performed. Further, if, with full knowledge of defendant’s inability to keep one portion of the contract, plaintiff requested and. accepted performance under the other, such conduct, of itself, constituted a waiver. According to the testimony of the defendant and his witness, it appears that after the making of the first contract, in November, 1889, the defendant, under the second provision in the agreement, gave to him the privilege of furnishing laborers under several contracts; that he accepted the offers, and made no objection that he was not accorded, under any one of them, all of the rights which it was the purpose of the contract to secure to him; that on several occasions defendant requested him to bring in his accounts, showing the number of men employed, to the end that a settlement might be had between them, and defendant promised, each time, to do so on the next visit. It also appears that after the defendant had failed to obtain the privilege of supplying labor under section 2 of the waterworks, which was the subject of the first provision of the agreement, he informed plaintiff of it, who, instead of declaring the contract at an end, and asserting that there was such failure of performance on the part of defendant as denied to him the right of recovery for the privileges which he had furnished, continued to accept the benefits which the defendant secured to him under the second provision of the contract, and, in one instance at least, accepted from him the privilege of furnishing laborers on a work in which he had not before been engaged. In the light of these facts, the court cannot say, as a matter of law, that the plaintiff did not waive any right he may have had to insist upon full performance under both provisions of the agreement, as a condition of recovery. There was such a performance under the second provision as at least presented a question for the jury whether it was not substantial. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.