p. 588according to the terms of the contract; that their work amounted to $50,025 ; that the defendants accepted it and paid them $30,000, but refused to pay the residue, and so, &c- In the second count of the declaration, it is averred that the plaintiffs completed 50,000 cubical feet of the work by the 19th November, 1825; that the defendants refused to pay them therefor, whereby the plaintiffs were unable for one year to go on with the work for want of funds; and so proceeds, stating the completion of various portions of the work from time to time, and refusals on the part of the defendants from time to time to pay, and the delays occasioned thereby. In the third count, it is averred that the plaintiffs completed 1200 feet of the bulk-head by the 1st February, 1826, and would have completed the whole, but that dock logs could not be procured, of which the defendants had notice ; and that on the 1st August, 1826, the time for the completion of the work was, at the request of the defendants and by the assent of the plaintiffs, waived and enlarged for a long space of time; and that within the time so enlarged the plaintiffs completed the work, and the defendants refused to pay, &c. The fourth count is substantially the same as the last.
The defendants pleaded non est factum, demurred to the first, third and fourth counts, pleaded payment to several of the breaches assigned in the second count, and demurred to the residue.
C. H. Hall, for defendants.
The defendants were not bound to give notice of their desire to have the work completed. It was the duty of the plaintiffs to proceed according to the terms of their engagement. Nor were they under any obligation to make pro rata payments for pro rata services, unless the plaintiffs shewed a full performance on their part. The two first counts are defective in not averring performance by the time stipulated, and the two last are bad in attempting to recover on the original contract in consequence of an enlargement of the time of performance. The plaintiffs ought to have brought their action of assumpsit on the enlarged agreement. (4 Cowen, 564.) The case of Littler
p. 589v. Holland, (3 T. R. 590,) is the leading case on this subject. The doctrine of that case has been fully adopted by this court, who have been followed by the court of the United States and the supreme judicial court of Massachusetts. In Freeman v. Adams, (9 Johns. R. 115,) the decision in 3 T. R. is confirmed that the action will not lie on the original agreement; that though an enlargement maybe plead by way of defence, it cannot be averred in support of an action on the original agreement. The case of Butler v. Roe, (8 Johns. R. 306,) shews that the error of a plaintiff in such a case is to be taken advantage of by demurrer.C. Walker, for plaintiffs.
The action of covenant can be maintained, where there is a paroi enlargement of time, if it be properly set forth in the declaration, so that there be no variance between it and the proof, and no surprise on the defendant. An extension of time of performance does not destroy a contract. (Chitty on Contracts, 27. 8 Johns. R. 306. 1 Esp. Cas. 35. 3 Johns. R. 532.) It is not denied such enlargement may be set up in a plea, why may it not be averred in a declaration ? The court, in 4 Cowen, say that assumpsit will lie on such enlarged agreement, but they do not say that covenant cannot be maintained. The case in 3 T. R. is clearly distinguishable from this. There the plaintiff sought to recover on the original contract without averring an enlargement. His proof and declaration did not agree, and the court decided against the plaintiff because the defendant had no notice of what he was called upon to answer. The case of Brown v. Goodman, cited in 3 T. R. 590, was an action of debt, not covenant, claiming a penalty when, by the substituted agreement, the party was not entitled to a penalty.The time for performance being enlarged at the request or by the assent of a party, and the work accepted, it ought not to be allowed to him to drive the opposite party to his action of assumpsit, and confine him to a recovery on a quantum meruit, when he is entitled to recover compensation according to the terms of the contract.
p. 590Hall, in reply.
An enlargement of a contract is allowed to be shewn in defence, to prevent resort to a court of chaneery. But why support a suit on the contract when the party has his remédy otherwise 1 Chitty on Contracts is not authority, unless supported by the cases referred to by him, especially when in opposition to the decisions of this court. The cases cited for the plaintiffs, in which a party was allowed to avail himself of an enlarged agreement, are all cases arising on the defence.
This cause comes before the court upon a demurrer to the several counts in the declaration. The action is founded on a contract under seal, by which the plaintiffs covenanted to erect a certain bulk head in the east river, to be completed by a certain day; and the defendants covenanted to- pay, &c. In two of the counts the plaintiffs do not even aver performance by the day mentioned. In the other two, they offer as an excuse for not performing by the day, an enlargement of the time by the defendants.
There can be no doubt that a paroi enlargement of the time set in a sealed instrument for the performance of covenants is good; but there can be as little doubt, at this day, that where there is such enlargement of a condition precedent, the plaintiff loses his remedy upon the covenant itself, and must seek it upon the agreement enlarging the time of performance. This question arose in Jewell v. Schroeppel, (4 Cowen, 566,) where Sutherland, J. says, “ It is abundantly settled that the plaintiffs, inasmuch as they had not performed within the time stipulated by the original contract, could not recover upon the covenants contained in it. They could not, in such action, give evidence of an extension of the time.” The cases referred to fully support that position. In the case of Little v. Holland, (3 T. R. 590,) the plaintiff declared in covenant. He was to build two houses for the defendant by a certain day; and on the trial it appeared that the work was not done by the time, but that the time was enlarged by paroi, and the work was done within the enlarged time. The judge held that this evidence did not sup
p. 591port the allegation in the declaration, and the plaintiff was nonsuited, and the court refused a rule to shew cause why it should not be set aside.
Brown v. Goodman, (3 T. R. 592,
n. b.) was an action of debt on an arbitration bond, in which the time was limited for the arbitrator to make his award.
The declaration stated that the time was enlarged by mutual consent, and that the award was made within the enlarged time. On demurrer, lord Kenyon said the plaintiff had no remedy on the bond; by that the defendant had bound himself to abide an award to be made within a given time, but that could never extend the penalty to an award made under a new agreement. The case of Little v. Holland was recognized as good law in Philips v. Rose, (8 Johns. R. 392, 3,) where the plaintiff had agreed to build an oil mill by a certain day, but built it by another day, and within the enlarged time. The court said that evidence that the contract was enlarged by paroi agreement will not support the declaration, The case of Brown v. Goodman has also been recognized by this court in Freeman v. Adams, (9 Johns. R. 110.) That was an action on an arbitration bond, on the back of which the parties had endorsed an agreement under seal, enlarging the time for making the award, and it was made within such time. The court said that by the decision of Brown v. Goodman, an action would not lie on the bond; the party has another remedy upon the submission implied in the agreement to enlarge the time. They go on to say, that if a contract be subsequently changed, you must declare otherwise than on the contract itself; and they distinguish between cases where actions are brought upon su.ch agreements, and those cases where the enlargement of time is presented by way of defence, as in Fleming v. Gilbert, (3 Johns. R. 528,) where such an enlargement was held to be a good defence. The cases cited by plaintiff’s counsel are cases of that description. It follows that the parts of the"declaration demurred to are bad, and the defendants are entitled to judgment upon the demurrers.