Schencke v. Rowell, 3 Abb. N. C., 3427.

12 449; Wyckoff v. Meyers, 44 N. Y., 145), and his mere refusal, when his impartial judgment dictates it, confers upon the contractor no right of recovery, even if, by other witnesses, he should be able to maintain that he had substantially performed the work.

13

The best judgment of the architect upon the matter so committed to his determination has been agreed upon as the test of the performance; and neither party can reject or repudiate his certificate given on the one side or his refusal to give it on the other, upon mere allegations or testimony tending to show that his action had been unreasonable." His entire refusal to act would throw upon the courts the duty of acting in his stead; but until divested of the power as conferred upon him by the parties, by death, incapacity, resignation or estoppel to act, the parties have agreed to accept either his certificate or his refusal to certify to the work done by the contractor as a final judgment between them. Under these considerations the complaint was defective in substance.

First. The mere allegation of complete performance of the 14 work did not confer any right of action for want of the architect's certificate.

Second. This was not supplied by the averment that the architect had "unreasonably" refused such certificate.

Third. The mere allegation that the defendants had duly accepted the work performed by plaintiff under and by virtue of said agreement added nothing in extenuation or avoidance of the necessity of such certificate, without further allegation that such work was so accepted, not only in compliance with the contract, but was also received as a full performance (Glacius v. 15 Black, 50 N. Y., 153).

The acceptance by the architect of any substitute for that which the contract called for, if substantially variant from its terms, could not be justified (except through authority of the employer), nor can the acceptance by the employer of inferior or different work than such as was contracted for be deemed or accredited as part or entire performance, except upon some new consideration, operating between the parties; any agreement to accept any such imperfect or incomplete work with deductions

Hosley v. Black, 28 N. Y. 438.

for defects agreed upon, would be binding (Glacius v. Black, 16 supra).

But without it, the idea that the mere declarations of an intention or purpose to waive any right to damages already accrued is wholly unavailable as a defense thereto or as against the assertion thereof.

Under these circumstances it follows that the complaint was defective in the foregoing particulars.

The order overruling the demurrer should therefore be re

versed and judgment given for the defendants, unless the 17

plaintiff within twenty days from the service of a copy order to be entered herein, amend his complaint and pay the costs of the trial on the demurrer and of this appeal (to be taxed by the clerk), and for failure to so amend and pay such costs that defendants have judgment final.

C. P. DALY, Ch. J., and J. F. DALY, J., concurred.

HOSLEY v. BLACK.

New York Court of Appeals, 1863.

[Reported in 28 N. Y., 438.]

1. In an action on contract, if the complaint alleges performance by plaintiff of the conditions on his part, and he proves substantial performance, a waiver of strict performance may be proved, amendment for that purpose being allowed by the court; terms to be imposed if necessary in furtherance of justice.*

2. If the complaint is general, for services, the contract being used as evidence only, amendment is not necessary to let in evidence of such

excuse.

Plaintiff sued for services of himself and wife in teaching 1 school.

The complaint (which was modelled on the common law forms of declarations in assumpsit) for a first cause of action, charged that the two defendants, with another person named, were trustees of a specified school district at a time named, and

* Compare Crandall v. Clark, 7 Barb. 169; Holmes v. Holmes, 9 N. Y., 525; Lester v. Jewett, 11 N. Y., 453; Wheeler v. Garcia, 40 N. Y., 584; - Smith v. Poillon, 87 N. Y., 590; Woolner v. Hill, 93 N. Y., 576.

Hosley v. Black, 28 N. Y., 438.

2 employed plaintiff to teach school in their district, with his wife as assistant, for a specified period and compensation, and alleged performance on his part, and that the third person, not joined as defendant, had ceased to be a trustee.

3

4

5

The second count alleged generally that defendants were indebted for services rendered by himself and wife [in respect of the same period], and repeated that the third person not joined had ceased to be trustee.

The other counts it is not necessary to state.

On the trial defendants moved to dismiss on the ground that one Richardson, the present third trustee, was a necessary party. Plaintiff had a verdict.

The Supreme Court at General Term, upon substantially the same grounds as those assigned by the Court of Appeals in the following opinion, affirmed judgment on the verdict. Defendants appealed.

The Court of Appeals affirmed the judgment.

BALCOM, J. The objection to the evidence given by the plaintiff to show that the defendants consented that Saturdays should be counted in ascertaining the length of time the plaintiff taught the school, was placed upon the ground that it was not competent to show a waiver of the performance of the contract to teach the school, under the allegations of the complaint.

The technical rule undoubtedly is, that under a complaint setting out a contract and averring its performance by the plaintiff, evidence in excuse for non-performance is not admissible. (Oakley v. Morton, 11 N. Y., 25.) But this rule is of very little consequence; for the plaintiff may amend his complaint and then give the evidence. (Code, § 173; Dauchy v. Tyler, 15 How. Pr., 399.) It is true that he must submit to such terms "as may be proper;" but terms are not often imposed for they are seldom necessary in the furtherance of justice.

In this case no amendment of the complaint was necessary to entitle the plaintiff to give the evidence excusing him from opening the school on Saturdays. The complaint contains seven distinct claims or counts, three of which are similar in substance

Hosley v. Black, 28 N. Y., 438.

7

to the count of indebitatus assumpsit for work and labor, used 6 prior to the Code of Procedure. That count always was sufficient to authorize a recovery for work and labor performed under a contract not under seal, unless the party performing the work and labor had failed to fulfill the contract. (4 Wend., 285; 11 id., 479; 22 id., 576; 1 Cow. Tr., 2d ed., 124; 2 id., 635 and 1128.) This court held in Farron v. Sherwood (17 N. Y., 227), that the Code has not changed the former rule of pleading; that a party who has wholly performed a special contract on his part may count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially upon the agreement. The same rule was held in the following cases: Allen v. Patterson (7 N. Y., 476); Keteltas v. Myers (19 N. Y. R., 231); Moffet v. Sackett (18 id., 522.) The plaintiff taught the school thirteen weeks for the first three months, and twenty-six weeks for the last six months. This was time enough to make the two terms, construing the word month to mean a calendar and not a lunar month, as the statute seems to require. (1 R. S., 606, § 4.) The fact that the plaintiff's wife was absent Monday mornings washing till ten or eleven o'clock in the fore- 8 noon, and a few days while sick, and that the plaintiff himself was absent one day attending a Buchanan mass meeting, and two days before the board of supervisors as candidate for county commissioner of schools, his wife keeping the school in his absence was not a substantial breach, by the plaintiff of the contract to teach either three months or six. This was a trifling matter. The school was kept during the time either the plaintiff or his wife was absent. Both were not away at the same time, and the attention of the judge was not particularly called to these absences at the trial; nor was it shown during which term they occurred. I am therefore of the opinion the judge was right in holding that the plaintiff performed the contract on his part.

The defendants were the only trustees of the school district at the time the action was commenced; and there was no evidence given that Thomas Richardson had become a third trustee at the time of the trial, and it was not conceded by the plaintiff that he was such trustee. The complaint showed upon the face

9

1

Parry v. American Opera Co., 19 Abb. N. C., 269.

10 thereof that the action was brought against only two trustees. But the defendants did not demur to it on that ground, or object in their answer on that ground to the plaintiff maintaining the action. The objection that a third trustee should have been made a defendant was therefore waived. (Code Pro., § 144; id., 147.)

[Remarks overruling some other objections to evidence are here omitted.]

All the judges concurred, except SELDEN, J., who dissented as to some of these latter questions of evidence.

PARRY 2. AMERICAN OPERA CO.

New York City Court, General Term, 1887.

[Reported in 19 Abb. N. C., 269.]

1. A servant who is wrongfully discharged from employment before the term for which he was hired expires, his wages having been paid in full up to his discharge, has but one cause of action for breach of the contract of hiring, and can have but one recovery of damages therefor.

2. Where plaintiff was hired for twenty-five weeks, and was discharged after eight weeks' service,-Held, that a recovery of judgment for the damages sustained for the two weeks following his discharge, barred any further action for damages for the remaining fifteen weeks for which he was hired, although his services, if they had been rendered, were to be paid for in weekly installments.

Appeal from a judgment entered upon a verdict for the plaintiff directed by the court at the trial.

William Parry sued the American Opera Company, Limited, for damages for breach of a contract, alleging that the defendant engaged him to act as its assistant stage director during the operatic season of 1886-7, for twenty-five or more weeks, begin2 ning in October, 1886; that on December 11th he was discharged, after eight weeks of service, and suffered damage including the loss of salary, for the remaining seventeen weeks. The complaint admitted that since his discharge plaintiff had recovered judgment against defendant "for two weeks of said salary to December 25th, 1886."