p. 399Appeal by defendant from judgment entered upon the report of referee.
The action was on a building contract for the value of . materials and labor furnished by plaintiff while building, for defendant,' a house.
The referee found that the printed specifications referred to in the opinion, and admitted in evidence, were submitted by the defendant to the plaintiff for estimates, and that it was then agreed between the parties, by parol, that they should be, and they then were modified in certain particulars. The contract contained the usual provision requiring an architect’s certificate to be obtained by the builder prior to demanding payment, etc. Further facts appear in the opinion.
William J. Amend and Lewis Sanders, for appellant.
—I. Under the contract, without special agreement, plaintiff could only recover cost price. There "was no special agreement proved, nor cost price. How can plaintiff sustain his judgment for the concrete and sixth story ?II. Where the plans and specifications are mentioned in the contract as annexed, it is sufficient to identify them though not in fact annexed (N. E. Iron Co. v. Gilbert El. R. R., 91 N. Y. 164 ). Here the plaintiff proved the plans and specifications.III. It is only where the refusal of the architect is unreasonable that the court can step in and certify the fact in his stead. Where the contractor omitted to put a sink at a cost of $100, the whole contract price being a little less than $3,000, no architect’s certificate was obtained as required. Held, the contractor could not recover. Occupation not an acceptance or waiver (Reed v. Board of Education, 4 Abb. Dec. 24). Certificate of architect conclusive on the owner in absence of fraud or mistake (Wyckoff v. Meyers, 44 N. Y. 143 ). By a parity of reasoning its refusal is conclusive on the builder. Although builder substantially completes the work so as to earn the fifth payment, yet if he then willfully aban
p. 400dons the work, leaving only some slight particulars undone, he cannot" recover (Crane v. Knubel, 61 N. Y. 646 ). Here plaintiff abandoned performance as to bolting coping, fine axing sills and lintels, pier plates in cellar, circular sky-lights, and seven inches of concrete in cellar, putting in but three. He should not recover in the absence of an architect’s certificate (Wangler v. Swift, 90 N. Y. 44 ). Where a party contracts to do work to the satisfaction of a third person, in an action to recover the stipulated price, he must aver and prove that the work was done to the satisfaction of such person (Butler v. Tucker, 24 Wend. 447 ; Barton v. Hennann, 11 Abb. Pr. N. S. 387; Tyler v. Ames, 6 Pans. 280; McCanen v. McNulty, 7 Gray, 139 ; Gibson v. Cranage, 33 Am. Pep. 353. See also Bowery Natl. Bank v. Mayor, 63 N. Y. 339 ; Glacius v. Black, 67 N. Y. 567 ; Flood v. Mitchell, 68 N. Y. 513 ).IV. Plaintiff as a witness was allowed to detail six alterations which, he alleged, were agreed to orally before the signing of the contract, but which were retained in the specifications which were made a part of the written contract .under seal. Ho application was made to reform the agreement, but the referee found that the prior alleged oral agreement superseded the subsequent written contract. This was error.William H. Sage, for respondent.
I. Where a building is subtantially completed under a contract, the refusal of the architect to give a certificate is unreasonable, and the plaintiff can recover without it (Nolan v. Whitney, 88 N. Y. 648 ; Thomas v. Fleury, 26 Ib. 36 ; Doyle v. Halpin, 33 Super. Ct. 352; Smith v. Wright, 6 Ib. 694 ; Whitman v. Mayor, 21 Hun, 121 ; Bowery Nat. Bank v. Mayor, 63 N. Y. 336 ).II. If there were any defects in the work, a deduction can be allowed therefor, and the plaintiff recover the full amount, less such damages (Woodward v. Fuller, 80 N. Y. 312 ; Glacius v. Black, 50 Ib. 153 ; Johnson v. De
p. 401Peyster, 50 Ib. 666 ; Heckman v. Pinkney, 81 Ib. 213; O’Sullivan v. Connor, 8 Week. Dig. 61).■ III. The good 4aith of the contractor in trying to do good work is co/Asidered as an element entitling him to recover Ward v. Kilpatrick, 9 Week. Dig. 342; aff’d, 12 Ib. 401; Woodward v. Fuller, 80 N. Y. 312 ; Glacius v. Black, 50 N. Y. 153 ).TV". Where extra work is, by the terms of the contract, to be 'on’dered in writing, such work ordered orally must be paid. for. The sixth story and second cellar floor were ordered orally by defendant (Am. Corrugated Iron Co. v. Eisner, 39 Super. Ct. 200 ; Smith v. Gugerty, 4 Barb. 614 ; Moody v. Smith, 70 N. Y. 598 ; Pierrepont v. Barnyard, 6 N. Y. 219 ).V. The printed parts of the specifications were no part of the contract; they were not signed, nor were they annexed to it; they are inconsistent with the contract, and were only intended to contain the particulars of the heights of the different stories, so that the plaintiff could make his estimate upon the cost of the building. In other respects the drawings guided him.The testimony supports the findings of the referee, that the new concreting of the cellar floor was not in performance of the written contract, and was extra work, and that the plaintiff raised the walls seven feet above the height fixed by the written contract considered in connection with the drawings.
It is claimed, however, that as the extra work was not ordered in writing by the defendant, and the plaintiff did not prove the actual cost of it, but recovered its reasonable value, there could be no recovery for it, under a provision of specifications that “ no bills for alterations or additions will be allowed unless the same were ordered in writing, and in default of any special agreement, extra payment is to be made only for actual cost of such alterations or additions.” This provision was a part of specifi
p. 402cations not signed by the parties, or annexed to the written contract which they did sign, and this written contract did not refer to specifications- for the agreement as to extra work, but itself contained! the clause that “should the owner request any alteration, deviations, additions or omissions from the said contract, he shall be at liberty to do so, and the same will be added tsxr deducted from the amount of the contract, as the case miay be, by a fair and reasonable valuation.” This clause Justified the action of the referee as regards the extra work. \
The referee overruled a question asked to show ghat the defendant notified the person in charge of putting'in the new concrete floor, that the defendant objected to lit as insufficient. The exception taken to this is not material, for the referee has found on the testimony that the work was done as requested by the defendant. He could not avoid the responsibility based upon this by objecting to the work in its progress.
The referee found, upon sufficient testimony, that the plaintiff had substantially fulfilled the contract, although he had unintentionally omitted to provide and lay two cast-iron frames around the floor-lights, and he allowed the defendant the value of the frames, and the' cost of laying them. The referee further found that plaintiff carried out his part of the contract in good faith, and to the best of his ability. Under these circumstances, it was unreasonable on the part of the architect to refuse to give a certificate of performance, and the plaintiff was entitled to recover without obtaining the certificate.
The plaintiff, when a witness on his own behalf on the trial, was asked, “ State what oral alterations were made in the specifications, Exhibit No. 2, before the signing of the contract ?” This was objected to by defendant’s counsel, on the ground that the specifications in contract are in writing, and all prior oral agreements are merged therein.
This ground is not in accord with the facts of the case. The specifications referred in the written contract had no
p. 403existence. That is, the contract made the following reference:
“ Agreeably to the drawings and specifications made by G-. W. C. architect, and signed by the said parties and hereto annexedbut no specifications had been signed by the parties or annexed to the contract. It was necessarily the subject of oral proof to show what the parties intended should be the specifications. On the plaintiffs proof, if the parties had been confined to the printed specifications, a contract would have been forced upon them which they had not made, and to which they had not committed themselves by any writing.
Other exceptions were taken which have been examined, and do not call for a reversal of the judgment.
Judgment affirmed, with costs.
Freedman and Truax, JJ., concurred.