The plaintiff submitted the following writing signed by him to the defendant, who was receiving estimates to build 22 houses on Wyona street, Brooklyn ; “Mr. Glaus Doscher: I hereby agree to do all the brick work for twenty two houses, two story and cellar, put in concrete for the foundations, for the sum of $4,600.” The next day the defendant told him to go ahead with the work. Nothing else occurred between them, and the plaintiff went to work on the houses. After working a week the plaintiff asked the defendant on Saturday for money and the defendant gave him $300. He testifies that he said to the defendant that that was not enough to pay his men for the week, and that they had to make some arrangement that he could get more money, and that the defendant answered “All right, make an agreement out and fetch it to me.” Ifive days later he handed to the defendant a paper signed by himself which set out seven payments at seven stages of the work, viz., when the brick work is ready for the first tier of beams, $40 for each house, when it is ready for the second, $40, and so on. He testifies that the defendant said “That is right, that is the way it is got to be done,” and kept the paper. On the Saturday following the plaintiff went to the defendant for money, and the defendant offered him $300. He declined it. The defendant denied that he had agreed to pay by the stages, and said if the plaintiff did not take the $300 he would give him nothing until the contract was completed. The plaintiff testifies that he had 19 houses up to the first tier and 3 up to the second, which would make $840 due On the installment basis, less the $300 paid. As the defendant would not pay this the plaintiff quit. This action is to recover the value of the work done and material furnished.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and RICH, JJ.Henry F. Cochrane, for appellant.
B. R. Duncan, for respondent.
No time of payment having been fixed by the original contract the law fixed the time, viz., when the contract was completed. The defendant’s counsel objected to the admission of the evidence of the change of the contract by providing for payments at stages of the work on the ground that it was “incompetent, immaterial and irrelevant, and as tending to vary a contract already executed between the parties.” This general objection was of course not good; it did not raise the point that there was no consideration for the new agreement as is now urged. The difficulty with that is that there was no such objection taken on the trial. The court left it to the jury to say whether the new contract was made, the defendant having denied it on the witness stand. This was excepted to, but no question of invalidity for lack of consideration was raised. The exception was in terms to the charge (paraphrased by counsel) “that a binding contract could be subsequently modified between the parties.” The request to charge has the same omission; indeed, it only asked the court to charge that “neither party” could change a contract. The brief for the appellant states that the foregoing is the only question the appellant submits.
The judgment and order should be affirmed.
Judgment and order of the County Court of Kings County affirmed, wltn costs.
All concur.