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Morton v. Harrison

52 N.Y. Super. Ct. 305 20 Jones & S. 305 Court N.Y. Super. Ct. Decision date 1885-06-26 English

Contents

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FRANCIS F. MORTON, et al., Respondents, v. OLIFF F. HARRISON, Appellant.

Headnote

Building contract—Substantial performance in good faith—Waiver of said compliance—questions for the jury—Acceptance—Non-completion by day fixed, excuse for, and effect of—Damages in case of substantial, but not strict performance, evidence as to.
A contract called for the building of a twelve-inch wall from the foundation to the top of the iron cornice or basement floor joist. It was, in fact, built only to the underside of girder." The upper stories settled from one to one and a half inches. Defendant claimed this was the result of not building said wall as high as called for, the neglect to do which was a serious and substantial violation of the contract. There was evidence tending to show that when this wall came to be built, it was found that it would be improper and unsafe to carry it up further than was in fact done ; that to carry it up further would jeopardize the whole building;. that the course actually adopted was the proper one ; that the settling was due to other causes, for which defendant’s agents were responsible; it was also proved that the architect’s superintendant directed this deviation because it was in his opinion necessary, and any other course would have caused the whole building to settle. Meld, that it was properly submitted to the jury to determine whether the wall as built was a substantial performance in good faith, of the contract.
In the case at bar, there was evidence to the effect that defendant’s agents frequently visited the building, and were active in their criticism of the work, and that their presence had placed them in a position where they must have known of the manner in which the provision of the contract as to the twelve-inch wall was being carried out. Held, that it was
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properly submitted to the jury to determine whether there had been a material variation without the consent of defendant, under a charge which instructed the jury that an acceptance might be implied from the acts of the party; but that the mere occupancy of a building is not a waJoer of strict performance.
Where there arc changes in the plans, which, either of themselves, or by reason of necessitating other changes, or by reason of delay in directing them, or by reason of the delay of other workmen in furnishing the articles necessary for the change, or by reason of all these circumstances combined, delay the completion of the contract, or the owner’s neglect to exercise an option which he retains at the proper time, causes delay. Held, proper to submit to jury whether such delays excused non-completion by the day fixed, and if they did, then whether the work was completed within a reasonable time, under a charge instructing them, that if non-completion by the time fixed was excused, then the plaintiffs (the contractors), were to complete the work only within a reasonable time.
In case of a substantial but not strict performance of the contract, the measure of damages is the difference- between the value of the house, as in fact finished, and as it would have been if the provisions of the contract had been strictly complied with. Evidence of cost to make conformity is immaterial and irrelevant to the inquiry as to this difference, in a case where it is manifest that to make such conformity would involve the destruction of so much work already done, and the doing of so much not originally contemplated by the parties as not to give the jury any reliable aid in ascertaining such difference.
Before Sedgwick, Oh. J., and O’Gorman, J.
Decided June 26, 1885.
Appeal from a judgment entered against the defendant, February 19,1884, for $40,385.09, on a verdict rendered in plaintiffs’ favor, and from an order denying a motion for a new trial.
Action upon a building contract.
The cause was tried before Truax, J., who charged the jury as follows :—
“The plaintiffs allege that in February, 1882, they entered into a contract with the defendant to make certain changes in a building on the south side of Forty-second street, in this city, according to certain plans and specifications, and that the defendant agreed to have thoso
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changes made prior to or on July 1, of that year. The plaintiffs say they have complied substantially with all the requirements of their contract. They admit that there was a delay in the completion of the building, but they say that that delay was not caused by any neglect on their part, but was caused by and through the neglect of the defendant. The defendant admits the making of the contract; but he denies that the contract, has been performed as it should have been, and he alleges that the delay which it is admitted occurred, was not through or on account of any action on his part. He denies that the delays in finishing the building and completing the work to be done under the contract, were caused by modifications of, or deviations in the work, varying it from the original 'contract, or that any such modifications or deviations were made at the request of the defendant or his agents; and he expressly alleges that such delays and failure to complete the work were wholly through, and the result of the carelessness and neglect and improper conduct of the plaintiffs. The questions for you to determine, therefore, are: Have the plaintiffs substantially complied with the covenants and conditions of their contract in the building they have given to the defendant ? and, second, were the delays in handing over the building on July 1,' caused by the plaintiffs, or caused by the defendant ? The plaintiffs, as I have told you, say the delay was owing to the changes made in the plans and specifications, by the defendant through his agents. But it is for you to say what is the fact. Did the plans show and call for a Whittier elevator, or did they call for some other ? If, as they have stated, the plans call for a Whittier elevator, then a change was made, and that change excuses any delay caused by such change. In relation to the water-closets, I do not remember that there is any evidence (and if there is, I ask counsel to call attention to it now) that the plans called for any particular water-closet.”
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Mr. Norwood.—“They were to be as in ‘the Benedick.’”
The Court—“ I am of opinion, and so charge, that the plans did not specifically call for the same appliances that there were in the 6 Benedick.’ If that be the fact—if the plans and specifications did not call for any particular water-closet—then, I charge you, it became the duty of the defendant to notify the plaintiffs, in due time, what water-closet he required ; because it would not be just for the defendant to wait until the last day of June to inform the plaintiffs what water-closets he wanted, and on that day say, ‘ put in such a water-closet,’ and then charge them with delay in not having them in by July 1. When did the defendant, then, inform the plaintiffs what water-closet he wanted ? The plaintiff, Mr. Chesley, as I remember the evidence, said it was in June. The defendant, on the other hand, or his agent, produced a letter, dated May 23, in which he notified the plaintiffs what water-closet he wanted. So that I think you may take it for granted that on May 23, 1882; the defendant did notify the plaintiffs that a certain water-closet was required in the building. Was that notification a sufficient length of time before July 1, to give the plaintiffs an opportunity to get the water-closets in there ? In other words, was any delay caused in the construction of the building by the failure of the defendant to inform the plaintiffs until May 23,—what water-closet was needed ? You will consider that in relation to the question of delay.
“There was some evidence, too, as to the fire escapes. Now the contract says that the defendant may, if he sees fit, have a fire escape in the building. It was his duty, then, to notify the plaintiffs at a reasonable time before July 1, what kind of a fire escape he wanted, so that the plaintiffs might put it up there ; and if he failed to do so, that failure would excuse the plaintiffs for delay caused thereby.
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“ So much for the facts of the case in relation to the question of delay.”
u There is a question now, as to the compliance by the plaintiffs with the conditions of their contract—whether they performed the covenants of their contract. Have they built the building according to the plans and specifications ? Now a literal compliance is not entirely requisite. Have they substantially built the building according to the terms of the contract %
££I charge you that, in order to justify a recovery, before you can find a verdict for the plaintiffs, the defects, if there be any, must be only in the minor details, and must not pervade the whole building. I charge you that if there was any material variation from the specifications, without the consent of the owner, and this material •variation runs through the whole building, so that the defendant has not got what he contracted to get, then the plaintiffs are not entitled to recover in this action. I say, ‘without the consent of the owner.’ By that I mean without the consent of Mr. Clement or Mr. Ellis, who were the agents of the owner—-without the consent of the owner or his agents ; and this consent may be implied from the acts as well as from the express words of the owner or his agents. In other words, is there such a state of facts as would warrant you in concluding from the evidence, that, with full knowledge of the condition in which the work had been done, the defendant accepted the work ? If there be any such facts, and you can fairly draw that conclusion from those facts, then I charge you that there has been an acceptance. In other words, it is not necessary that an acceptance should be in the words ‘ I accept.5 Tou may imply it from the acts of the party. But the acceptance of the architects is not the acceptance of the defendant in this action ; because there is no evidence (I charge you) that the architects were agents of the defendant, so that they could bind Mm by accepting the work.
“ I also charge you that the occupation of the building
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by the defendant is not a waiver of strict performance of the contract; that a party is entitled to retain, without compensation, the benefit of a partial performance, where, from the nature of the contract, he must receive such benefits in advance of a full performance, and is, by the contract, under no obligation to pay until the performance is complete.
1 ‘ In relation to the changes in the contract, I have charged you that the architects were not the agents of the defendant, and that they had no right to make any change without the consent of the defendant. There must be no willful deviation from the specifications, and if there was any such deviation, there must be a verdict for the defendant, unless the defendant or his agent has consented thereto.
“While the plaintiffs were under obligation to comply with the contract and specifications, still, if the defendant knew that they had not so complied, and accepted and paid for the work then done, without objection, you would be entitled to consider that as a waiver of strict compliance.
“ The. plaintiffs claim that they have fully and sufficiently performed their contract according to its terms, and according to the specifications and plans, and that the matters which are the subject of complaint by the defendant, are not attributable to any failure in performance by the plaintiffs, and in considering this claim of the plaintiffs, you are instructed that the rule of law is that if you find that the proof supports this claim, the plaintiffs are entitled to your verdict.
“There has been evidence that there was a defect or deflection in the walls. If this deflection in the walls was caused by the plans not being the right kind of plans for the building—if it was caused through a defect in the plans instead of a defect in the construction of the work by the plaintiffs, then that is not the plaintiffs’ mistake, and they are not responsible for it—it is the mistake of the defendant.
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“If you find that the plaintiffs have performed their contract in every respect except as to time, and you further find that the delay in completing the contract by the time specified, was attributable to changes in the work from the original contract and specifications made at the request of the defendant, of those acting for him, then the plaintiff can recover, notwithstanding such delay.
“A substantial compliance only is required, and if the owner suffers the builder to go on after the time limited has expired, with knowledge of its condition, without expressing disapproval, he waives the forfeiture which he might otherwise have claimed. He was bound to express his dissatisfaction at the delay; and if he intended to take advantage of it, should have acted with promptness at the time, instead of allowing the contractor to expend time and money in the completion of the work.
“ If the plaintiffs were proceeding to complete their contract according to its terms, and according to the specifications, and changes were made in reference to the elevator, water-closets, or in any other respects, at the request of the defendant or his agent, and such changes, or any of them, prevented the completion of the contract by July 1, 1882, then the plaintiffs are excused for not completing at that date. If you find any of the facts that I have mentioned, which excused the non-completion by July 1, 1882, then the plaintiffs were bound to complete the work only within a reasonable time ; what was a reasonable time is a question to be determined by the jury from the circumstances of the case.
“Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects or unintentional omissions, he may recover the contract price, less the damage on account of such defects ; if the jury find the general purpose of the contract between the parties has been accomplished, the plaintiffs are entitled to recover upon the contract.
“The principal question is perhaps, in relation, to the
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compliance by the plaintiffs, with the terms of their contract, in respect to this twelve-inch wall. I leave it for you to determine, whether the twelve-inch wall was completed substantially as required by the terms and specifications of the contract. If you come to the conclusion that the twelve-inch wall, as built, is substantially what the contract calls for, although it may not be the one in every particular, then your verdict will be for the plaintiffs. If, on the other hand, you come to the conclusion that it is an entirely different thing, and does not do the work which was required of it, and which a wall specified in the plans would do, then I charge you the plaintiffs have not performed their contract and cannot recover in this action. I leave that fact for you to determine.”
Billings & Cardozo, attorneys, Coles Morris and Michael H. Cardozo, of counsel for appellant,, cited authorities to the following propositions which they urged:
I. The full performance by the plaintiffs of their contract with the defendant was a condition precedent to their recovery in this action, and there was no such substantial performance shown as entitled them to a verdict (Heckman v. Pinkney, 31 N. Y. 211 ; S. C., 8 Daly, 466 ; Woodward v. Fuller, 80 N. Y. 312 ; Glacius v. Black, 67 Ib. 563 ; S. C., 50 Ib. 145 ; Crane v. Knubel, 34 Super. Ct. 443 ; affirmed, 61 N. Y. 645 ; Smith v. Brady, 17 Ib. 173; Phillip v. Gallant, 62 Ib. 264; Walker v. Millard, 29 Ib. 375 ; Pullman v. Corning, 9 Ib. 93; Sinclair v. Tallmadge, 35 Barb. 602 ; Smith v. Gugerty, 4 Ib. 614; Bonnesteel v. The Mayor, 6 Bosw. 560 ; affirmed, 22 N. Y. 162 ).
II. The contract expressly required the work and finish to be done thereunder to the satisfaction of the owner, the defendant, and the trial court erred in refusing to give any effect to this clause of the contract (President, &c. of D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250 , 258). Such clauses are frequently found in contracts, and the courts of this and other states have always given effect to them (McKensie v. Decker, 94 N,
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Y. 650 ; Gray v. N. Y. C. & H. R. R. Co., 11 Hun, 70 ; Hoffman v. Gallaher, 6 Daly, 42 ; McCarron v. McNulty, 4 Gray [Mass.] 139 ; Brown v. Foster, 113 Mass. 136 ; S. C., 18 Am. R. 436 ; Gibson v. Cronage, 39 Mich. 49 ; S. C., 33 Am. 351; note pp. 353, 354: Galeski v. Clark, 44 Conn. 218 ; Russell v. Allerton, 31 Hun, 307 ). Even Judge Bronson concedes this to be the rule in Buller v. Tucker ( 34 Wend. 449 ).
III. This was not a contract to erect a building, but one to alter or repair a building already erected, and the true rule of damages was, what it would cost to make the building, as left by the plaintiffs, conform to the contract, plans and specifications (Smith v. Brady, 17 N. Y. 173 -177). The rule as announced by the court of appeals, in Kidd v. McCormick ( 83 N. Y. 381 ), does not apply to the case of an alteration of, or repairs to, a building.
IV. The court erred in leaving it as a question of fact for the jury 11 to determine whether the twelve-inch wall was completed substantially as required by the terms and specifications of the contract.” The specifications expressly required that the wall should have been built up to the top of the basement floor joists. Instead of which, it was only built up to the under side thereof, about twenty inches lower than was required by the specifications. This precise point was decided in Glacius v. Black ( 67 N. Y. 563 -567). The same rule was laid down in Smith v. Brady ( 17 N. Y. 173 . See also opinion of Judge Comstock in this case, pages 186, 187).
V. All of the evidence given by the plaintiffs’ witness, Hill, the superintendent of the architects employed by the defendant, as to changes made by his direction from the plans or specifications, should have been excluded under the contract (Glacius v. Black, 50 N. Y. 143 , at p. 150 ; Graham & Waterman New Trials, 612-630). The admission of this testimony is cause for reversal (Gulf C. & Santa Fe R’y Co. v. Levy, 59 Tex. 542 ; 46 Am. 269).
VI. Chesley stated, on cross-examination, that the twelve-inch brick wall was not laid to the top of the base-
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meat floor joist, as required by the specifications. Plaintiffs’ counsel then asked, “Why was not that done?” Defendant objected as incompetent. The question was allowed upon defendant’s exception, and the witness answered : “ Mr. Hill decided that that was the best way to do it.” Defendant’s motion to strike out this answer was denied, and an exception was taken. After stating that they had not complied with the specifications in this exceedingly important particular, plaintiffs were allowed to excuse their failure by showing that this same Mr. Hill, the employee of the architects, decided that it was the best way. Even if it be proper to allow plaintiffs to show why they deviated from the specifications, it is unquestionably incompetent to allow such testimony as this to stand upon the record, and the answer at least should have been stricken out. The answer might have been that defendant so directed.
Norwood <& Coggeshell, attorneys, and Carlisle Nor-wood, Jr., of counsel for respondents, cited authorities for the following propositions, urged by them
I. The rule as to delay is, that where a contractor in a contract of this kind was prevented from completing his contract by changes from the specifications, or by any act of the other party, the contractor would be excused from performing at the contract time (Dillon v. Masterson, 42 Super. Ct. 176 ; Doyle v. Halpin, 33 Ib. 352; Smith v. Gugerty, 4 Barb. 614 ; Fleming v. Gilbert, 3 John. 528 ; Farnham v. Ross, 2 Hall, 167 ; Stewart v. Keteltas, 36 N. Y. 388 ; Sinclair v. Talmadge, 35 Barb. 602 ).
II. It is conclusively settled that the true test of the question whether the plaintiffs can recover upon a contract such as in the case at bar, is as follows: If the defects are of such a grave nature that they go to the whole purpose of the contract between the parties, plaintiffs can recover directly on contract; but if they are the defects of such a character that, though grave in themselves, they relate simply to particular parts of the struc
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ture, they can (Woodward v. Fuller, 80 N.Y. 312 ; Glacius v. Black, 67 Ib. 563 ; 50 Ib. 145 ; Johnston v. De Peyster, 50 Ib. 666 ; Hickman v. Pinckney, 81 Ib. 211; O’Sullivan v. Connor, 8 Week. Dig. 61 ; Phillip v. Gallant, 62 N. Y. 256 ; Weeks v. Little, 47 Super. Ct. 1; aff’d, 89 N. Y. 566 ; Smith v. Gugerty, 4 Barb. 614 ). It is now well settled law that “ where a builder has, in good faith, intended to comply with the contract, and has substantially complied with it, although they may be slight defects caused by inadvertence or intentional omissions, he may recover the contract price less the damage on account of such defects (Woodward v. Fuller, 80 N. Y. 312 , 405).
III. Mr. Ohesley, having testified, on cross-examination, that the twelve-inch wall was not laid on top of the basement floor joist, was asked, on the re-direct, why that was not done, which was objected to as incompetent, and having answered that Mr. Hill decided that was the best way to do it, defendant’s counsel moved to strike out the answer, “on the ground that the decision of Mr. Hill cannot control the work.” The court will recall the numerous cases cited {ante), holding that the good faith of the contractor, where he deviates from the contract, is one of the elements of his case. On the question of plaintiffs’ good faith, the testimony was competent; and as to the motion to strike out, the ground of the motion was wholly untenable ; plaintiffs never claimed that the decision of Mr. Hill was controlling. The defendant’s counsel requested the jury to be instructed on this point, and the court allowed the request.
IV. The provision in the contract that “ all work and finish shall be done to the satisfaction of the party of the first part,” means should be to the reasonable satisfaction of the owner (Addison Contr. § 858 ; Dalman v. King, 4 Bing. N. C. 115), and this was, on the evidence, a question for the jury.
V. Plaintiffs insist that since this building was not built, or to speak more accurately, was not altered into a bachelor apartment house, for occupancy by the defend
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ant; but that on the contrary the purpose of the building was renting it to others ; that the only damages defendant could recover would be such as were occasioned by the actual loss of a tenant whom he might have procured but for the unreadiness of the building (Wagner v. Corkhill, 40 Barb. 175 ).
VI. The rule of damages invoked by defendant was clearly incorrect. He was not entitled to recover the cost of supplying omissions, or of making good defects, but could recover, if at all, the difference in value between the building as contracted for and as finished (Kidd v. McCormick, 83 N. Y. 391 -397).

The plaintiffs were building contractors, doing business in the city of Hew York under the firm name of Morton & Chesley, and on or about February 4, 1882, they entered into a written agreement with the defendant—“to tear out, alter and rebuild ” his premises known as 228-232 West Forty-second street, in this city, so that they should contain a complete first class apartment house of thirty-nine complete suits, in the same general style as to workmanship, &c., as that prevailing in “The Benedick” apartment house in Washington square. The work was to be done pursuant to certain specifications, “so far as the same were applicable thereto,” and in accordance with detailed plans to be prepared by McKim, Mead & White, defendant’s architects, and approved by the defendant. All work was to be done to the satisfaction of the defendant, and the whole was to be finished on July 1, 1882. The sum of $45,000 was to be paid to plaintiffs for their work, in monthly installments, on certificates of the architects, and the balance was to be paid on the final performance of the contract, and delivery of the premises to the defendant as contracted for.

The work was not, in fact, finished until February 28, 1883, when the premises were delivered to the defendant.

The defendant Harrison resided in Vermont, and never

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gavo personal attention to the building while in progress. It does not appear that he was ever there, and he left the protection of his interest in the matter wholly to two persons who acted as his agents therein, named respectively George W. Ellis, his attorney, and Percival W. Clement, who guaranteed the defendant’s payments on the work, and entered into possession of the premises when completed and delivered up by the plaintiffs.

The defendant paid the plaintiffs $8,800 during the progress of the work, and this action was brought to recover from him $36,200, the balance claimed to be still due. The defense was, that the plaintiffs had failed to comply with important and substantial requirements of the contract; that the time fixed in the contract for the completion of the work, July 1, 1882, was of the essence of the contract; that in various other particulars the defendant, by reason of the negligence and unskillfulness of the plaintiffs as to material and substantial provisions of the contract, had been subjected to great loss and damage, amounting to $40,000, for which sum the defendant made a counter-claim.

Of these charges against the plaintiffs, of failure to comply with their contract, but two seem to be important and entitled to consideration as affecting this appeal. One was, that the plaintiffs failed to build a twelve-inch brick wall from the foundation to the top of the iron cornice or basement floor joist, as required by the specifications. It is not denied that in this respect, the strict letter of the specifications was not complied with. The brick wall was built only to the underside of the girder, on which the floor beams of the basement floor rested. This, defendant claims, was a material and substantial violation of the contract, disentitling the plaintiffs to any recovery ; that its effect was to allow of a depression in the second, third, fourth, and fifth floors of the building, of from one to one and one-half inches ; and that this mischief would not have occurred if the brick wall had been built to the top of the basement floor joist, as

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required by the specifications. There was, on this subject, much conflict of testimony. Witnesses on the part of the plaintiffs testified that it would have been improper and unsafe to carry the twelve inch brick wall to the top of the basement floor joist ; that when the time came to do this work, it was found that to carry out exactly the terms of the contract, would have left the wall partition and everything resting on it in the five stories above, without any support, and would have jeopardized the whole building; that the course actually adopted, was the proper course ; that the depression of the floors above was not more than usually occurred in houses thus altered from one purpose to another; that it was not caused by the plan adopted, but. was the result of shrinkage of the wood from over-heating of the building, for which said Clement was responsible, and of the great additional weight of many new partitions, erected on the upper floors, while in the house, in its former state, few partitions or rooms had existed.

The testimony of Mr. Hill, the superintendent employed by the architects, was substantially to this effect: He was continuously, from day to day, observing the work as it progressed, and it was his duty to see that the work was done according to the plans and specifications. It was he who directed this deviation from the terms of the specifications, without any consultation with his employers, because, in his opinion, it was necessary, and any other course would have caused the whole building to settle.

As tending to show acquiescence, or waiver of objection on the part of the defendant, the plaintiffs proved that both of the defendant’s agents, Ellis and Clement, were frequent in their visits to the building, while it was in progress, and active in their criticism of the work; that their constant presence had placed them in a position where knowledge of all that was done there was within their reach, and that they, or either of them, must have known of the manner in which the provision of the contract, as to the twelve-inch wall, was being carried out.

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The learned trial judge submitted to the jury, as a question of fact, whether the plaintiffs had substantially performed their contract, or whether there had been any material variation from it without the consent of the owner or his agents, and, in his charge, correctly instructed the jury as to the rule of law applicable to the case, and his charge was in harmony with the authorities cited by the learned counsel for the defendant. In my opinion, the question was properly submitted to the determination of the jury.

The other ground of defense is the plaintiffs’ delay to complete the work on July 1, 1882, as required by the terms of the contract, whereas, the work was not in fact completed until February 28, 1883, seven months after-wards.

For this failure to comply with the terms of the agreement, plaintiffs offer this excuse. They say that they were embarrassed and delayed by changes of plan made by defendant’s agents, Ellis and Clement.

The intention of the parties to the contract was, it appears, at first that an elevator should be put in the building, of the kind known as the “Whittier” elevator, and which was used in the “ Benedick ” apartment house, During the progress of the work, and about May 23, 1882, Clement determined to use an “ Otis ” elevator instead, and this change rendered necessary some other changes of the plans, as they were originally formed. It is in evidence that when the plaintiffs were informed of this change to the “ Otis ” elevator, they had already made a contract for an elevator with the “Whittier Machine Company,” dated March G, 1882, and some necessary delay occurred before plaintiffs could relieve themselves from their contract with the “ Whittier Company.” This, they, at last, succeeded in doing; and on June 29, 1882, they made a contract with “ Otis Brothers.”

Testimony was also given, on behalf of the plaintiffs, to show that the completion of the building had been further delayed by a change made by defendant’s agents

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as to the kind of water-closets to be put in. The architects at first determined on the closet known as the “ Bartholomew ” as being that kind in use in the “ Benedick.” They afterwards changed it to the “ Zane ” closet. Then, Clement finally required that the “Hellyer” plan should be used, which involved putting in a fine of pipe directly to the roof. This last choice,1 on the part of Clement, was not communicated to Chesley, one of the plaintiffs, until July 28, 1882, some days after the day fixed for the final completion of the building. It is also in evidence that these “ Hellyer ” closets as ordered, were not delivered to the plaintiffs until September 1882.

The learned trial judge submitted to the jury, with proper instructions, the question as to whether or not the plaintiffs had shown good reason or valid excuse for not completing the building at the day fixed by the contract, and whether, under all the circumstances of the case, they had completed it in reasonable time. No error, in my opinion, was committed therein. Both these questions were proper for the determination of the jury, and there was enough of evidence in the case to sustain their verdict.

The appellant’s exception to the refusal of the trial judge to charge “ that if they found that the contract has been substantially performed, they must allow the defendant such an amount as would be necessary to make the building conform to what the specifications required, was not well taken. The true rule of damages in the case at bar would be the difference in value between the house as it was in fact finished by the plaintiff, and as it would have been if he had accurately carried out the provisions of the contract' (Kidd v. McCormick, 83 N. Y. 391 ). As a means of ascertaining that difference, and as matter of evidence tending to that end, the inquiry as to the actual cost of making the building conform to the specifications, would not be, in the case at bar, material or relevant. It is manifest, that to raise this twelve-inch brick wall, now, to the top of the basement floor joist, might involve the

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destruction of so much work already done, and the doing of so much work not originally contemplated by the parties, that such an inquiry could not give any rehable aid to the jury in ascertaining the difference in value, between the building, in a defective condition, and what would have been its value if no defect had existed.

This case seems to have been tried with care, and an exhaustive examination of all the facts which could give any light to the jury. The jury were also allowed to visit the building in question, and I see no reason to interfere with their verdict.

The judgment appealed from should be affirmed, with costs; and the order appealed from should also be affirmed, with $10 costs.

Sedgwick, Oh.. J., concurred.

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