APPEAL by the plaintiff, Wakeham & Miller, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of April, 1911, upon the report of a referee dismissing the complaint on the merits.
Percival De Witt Oviatt of counsel [Pressinger & Newcombe, attorneys], for the appellant.
Morris A. Tyng of counsel [Peter Eagan, attorney], for the respondent.
The complaint alleged the execution of an agreement in writing whereby plaintiff undertook to build a church and rectory for defendant for $197,404.75; that plaintiff substantially performed the work and furnished the materials as the contract, drawings and specifications provided, 'excepting as the same were waived, changed, altered or modified by mutual consent of the respective parties, and as so changed, altered and modified, the plaintiff substantially performed the said contract, and on or about the 31st day of October, 1908, became entitled to the final payment of the said contract price, * * * less certain credits to which the defendant became entitled, amounting in the aggregate to the sum of Nine hundred and eight and 20/100 Dollars, leaving the amount earned by plaintiff, under the said contract, the sum of $196,496.55.' Judgment was asked for the balance unpaid on said contract price of $39,786.40 and an unpaid balance for extra work of $903.64.
In the answer the defendant denied that the plaintiff performed
the contract alleged in the complaint either substantially or otherwise. It admitted that certain extra work had been done; it alleged that defendant had been put to expense in completing the work and set up a counterclaim for $50,000.
The substantial controversy upon the facts, as presented by the objections in the notice served upon plaintiff terminating its employment, as tried out before the referee and as argued before us, is the substitution by the plaintiff at various places in the exterior walls of solid for hollow bricks. The specifications provided: 'The inside 4"' of all exterior walls from foundations to roof to be built of hard burnt hollow brick properly tied and bonded into walls, and of the same dimensions as the ordinary brick; to have headers every sixth course; headers to be perforated transversely.' On the prior page of the specifications it was provided: 'All walls, piers, etc., shown to be of brick on plans, including brick work in basement and foundations, to be constructed of best quality hard burnt up-river brick (to be approved by the architects) laid close in clean screened sharp sand and cement mortar.'
The referee found that it required 132,244 hollow brick to build the interior four inches of the exterior walls in the manner required by the contract; that the walls built with hard brick where hollow was called for would have required 61,239 hollow brick. The cost of the hard brick was $6.75 per 1,000; the cost of the hollow brick was $9 per 1,000. The difference is $138. Because of the failure to perform in this item the referee has declared forfeited the balance of the contract price due, very nearly $40,000, refused a recovery for the extra work which was clearly proved and about which there is no dispute, and refused to pass upon the counterclaim of $50,000, although a request for dismissal as not proven was submitted.
There were some nine instances of improper substitution of hard for hollow brick claimed by respondent, of which three were resolved in favor of the plaintiff, four against it, and two were dropped. The plaintiff claims that as to the four found against it the weight of evidence establishes that they were ordered by the architects, with the knowledge and acquiescence of Dr. McQuirk, who, it was stipulated, 'was the agent and
representative of the defendant for the purpose of carrying out the said contract in accordance with its terms and provisions, and also had power as such agent and representative to waive or modify any of the provisions of the said contract to the same extent as the defendant corporation could have done.' It urges that the three changes found in its favor were not authorized in writing, that there were continual changes ordered during the progress of the work--fifty-eight are pointed out in the brief--under like ...