Dunn v. . Steubing , 120 N.Y. 232 ( 1890 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The sum earned by the plaintiff in excavating and removing material at the price per yard agreed on was $14,476 and he had been paid $12,363.66, leaving $2,112.34, which he seeks to recover in this action. The defendant insists that the plaintiff's failure to perform the work within the time limited, is a defense to the plaintiff's claim, and that by reason of the failure, he is entitled to recover damages to the amount of $2,400 at the rate of $600 per month for the loss of the use of the property.

The trial court instructed the jury:

"I charge you that before the plaintiff can recover in this action he is bound to prove to your satisfaction, either that he performed the agreement of March 13, 1884, and finished the work there provided to be done within the time fixed by that agreement, or that the defendant has consented to or waived the performance of the agreement within the time fixed. Time was of the essence of the agreement between the parties, and the failure of the plaintiff to fully complete the work within the time limited by the contract for its completion operated to defeat his right to recover in this action, unless you find that the defendant by his own acts caused the delay complained of by him. * * *

"Under this contract the plaintiff was required to have the work compled on the 13th day of June, 1884. He did not. Then there was an obligation upon the defendant; that obligation was this: it was then the duty of the defendant to stop the plaintiff's work, or, if he allowed him to go on and work without protest he must pay him for the work that he did; if he wished to insist upon a forfeiture, if he wished to insist upon the strict terms of the contract, it was then his duty so to insist. * * *

"The defendant makes a counter-claim and, under the view of the law I have taken, he had the right to let plaintiff go on and complete his work, and then he had the right to say, as he said in this action, I will pay you for the work that you have done for me, but I want the damages that you have caused me by the delay in doing my work as you have agreed to do it. And it is for you to determine from the evidence what those damages were, if he has sustained any damages. If the damages equal the amount that I have stated as due the plaintiff under the contract, then your verdict will be for the defendant. If the damages do not equal that amount you will make the computation, and if the damages exceed the amount you will give your verdict for the defendant for such an amount."

Under these instructions the jury deducted $956.34 from the plaintiff's claim and gave him a verdict for $1,154.

The defendant asked the court to dismiss the complaint on the ground that the plaintiff, not having performed the contract within the time limited, nor established a written modification thereof or waiver of its performance in the time and manner agreed on, was not entitled to recover. This proposition was presented in various forms during the trial, by requests to charge and by objections to the admissibility of evidence of performance after the time fixed by the contract.

It is conceded that the plaintiff continued in the performance of the contract after the day fixed for the completion of the improvement with the defendant's knowledge, and it appears that estimates of quantities of material removed were afterwards furnished by an engineer to the defendant, who continued to make payments on account of the work. It also appears that on defendant's request the quantity of material to be removed was increased after the execution of the contract.

Upon the failure of the plaintiff to perform by the day fixed, the defendant might have insisted on his strict legal rights and then put an end to the contract, but this he did not do, but permitted the plaintiff to continue the work, and for this reason he cannot now insist on the delay as a defense to an action brought to recover the price of the work. (Jewell v.Schroeppell, 4 Cow. 564; Gallagher v. Nichols, 60 N.Y. 438;Lawrence v. Dale, 3 Johns. Ch. 23; McNiven v. Livingston, 17 id. 436; Leake on Cont. 850; Pollock on Cont. 464; 2 Whart. on Cont. §§ 887, 888.)

A party to a contract containing a provision that it shall not be altered, modified or changed, except by a written agreement signed by both parties, may, by conduct, estop himself from enforcing the provision against a party who has acted on and relied upon the conduct.

The judgment should be affirmed, with costs.

All concur, except HAIGHT, J., not sitting

Judgment affirmed.