p. 348Joseph Sutherland, et al., App'lts, v. Thomas Morris, Resp't.(Supreme Court, General Term, Second Department,Headnote
Contract—Evidence.Under a contract, which was in writing, the plaintiff undertook to do certain work and furnish certain materials agreeable to certain drawings, etc. The specifications, which were not signed by the parties, but in legal effect incorporated in the contract, contained a provision that “the contractor will take notice that there will be no extra work done unless agreed upon by the superintendent, the price put in writing and signed:" Held, that extra work could not be recovered for unless these conditions were complied with. That evidence of extra work was properly excluded, there having been a failure to comply with said conditions.
Appeal from a judgment in favor of defendant, on a verdict directed by the court at a trial term of the city court of Yonkers, and from an order denying a motion for a new trial.
B. E. ,& J. Prime & Burns, for appl’ts; Joseph F. Daly, for resp’t.
The plaintiffs in this action made an agreement with the defendant to furnish materials and labor for the masonry work of a new house. The contract was in writing, and by it the plaintiffs undertook to perform their work agreeably to the drawings and specifications which are referred to as signed by the parties and annexed thereto.
The specifications were not, however, signed by the parties so far as we can learn from the record before us, but in legal effect they were incorporated in the contract. They contained this important provision in words: “The contractor will take notice that there will be no extra work done unless agreed upon by the superintendent, the price-put in writing and signed.”
p. 349This action was commenced to recover for work, labor and materials, extra and outside of the written contract and specifications, and the effort of the plaintiffs upon the trial was to introduce proof of the labor and materials furnished beyond the requirements of the contract, without a compliance with the condition precedent which required the procurement of the agreement of the superintendent and the reduction of the price to a subscribed writing before any extra work could be performed upon the building.
The exclusion of the testimony of the plaintiff proceeded upon the failure to comply with the condition and they must all be sustained.
The condition was introduced to prevent the very thing which the plaintiff now attempts. The contractors had before them a specific delineation of the work they were required to perform, and they were never requested to do anything more than to complete what they undertook, in conformity with their contract.
The recovery seems to fairly include all the legal liabilities of the defendant to the plaintiffs, and the judgment should be affirmed, with costs.
Barnard, P. J., and Pratt, J., concur.