Bracco v. Tighe

The allegations of the complaint were not put in issue by defendant’s 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. Wo 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. Wo 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 all 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 ; 20 St. Rep. 569 . The defendant testified (and in such respect lie was supported by the witness Martella, who acted as the interpreter in the transactions had between plaintiff and defendant) that in Noverriber, 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 the 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 lie then had a suit pending for the purpose of securing a decree dissolving the partnership;

The 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

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 City 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 performance. 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,

All concur.