La Chicotte v. Richmond Railway & Electric Co.

O’Brien, J.: Without considering the merits of the defendant’s counterclaim, or the other points raised, there are two questions which we think [384] fatal to this judgment. The first arises from the variance between the complaint and the proof. The complaint alleged performance of the contract, and over the defendant’s objection plaintiff was allowed to prove, not performance, but excuses for not performing the work in accordance with the contract. This question has been many times before the court, and the authorities all hold that it is an elementary rule of pleading that when the plaintiff alleges performance of a contract lie must prove performance. He cannot excuse non-perfonnance and recover, because a strict compliance with the obligations of the contract has been either waived or prevented by the defendant. 'Section 533 of the Oode of Civil Procedure provides: “ In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance, but the party may state generally that he, or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance.” And in Oakley v. Morton (11 N. Y. 30) the court say : “ The plaintiff was bound to aver and prove a fulfillment of such condition, or some excuse for the non-performance ; and, if an excuse was relied upon, he should have averred his readiness to perform and the particular circumstances which constituted such excuse.” To the same effect are Crane v. Knubel (43 How. Pr. 389); Smith v. Brown (17 Barb. 431); Bogardus v. N. Y. Life Ins. Co. (101 N. Y. 328). And in the later case of Elting v. Dayton (43 N. Y. St. Repr. 363; affd. without opinion, 144 N. Y. 644) it was held that, under a complaint in an action upon a building contract alleging full performance, evidence tending to excuse delays by plaintiff in completing after the time fixed by the contract, for which it provided a penalty, or to establish a waiver by defendant, is incompetent. It was therein further held that where objection to such evidence was duly taken, and no amendment asked for, the appellate court could not consider the pleadings amended to conform to the proof. Here objection was seasonably taken, and the court stated, without any request from the plaintiff, that it would allow an amendment. This, however, does not seem to have been availed of by the plaintiff. But if we assume that the final statement of the court, that it would allow the complaint to be amended, effected an amend [385] ment of the complaint, then such amendment should only have been allowed upon compliance with the request made by the defendant, which was thus formulated: “ Then we want to be served with a copy of the proposed amendment on which they stand.” Instead of according this right to the defendant, the court overruled the objection and admitted the evidence. From this it appeared, not only that the contract was not begun in time, but that it was not finished in time, and testimony was presented which, if plaintiff’s understanding of the contract is right, would have excused strict performance. The construction for which the plaintiff contended was, that the piers and flooring were to be done by the defendant, and while we are inclined to agree with the view of the learned trial judge as to the piers, that all the plaintiff was to furnish was “ a general plan of -foundations, showing elevations of pedestals with distances of same, * * * with suggestions as to general dimensions of pedestals,” another and more difficult question to solve is presented, as to whose duty it was to furnish the flooring. This brings us to what we regard as the second fatal objection to the judgment. If the language employed in the contract would justify the view that all the builder was to furnish was an iron superstructure, then the plaintiff’s contention could be supported. The provision of the contract, however, is to “ furnish all material except sashes, and to construct and complete an iron power house,” and were it not for the subsequent conditions which qualify this general language, notably as to the foundations, then a reasonable construction would require us to hold that the plaintiff’s contract was to build an iron power house which, among other things, would necessarily include floors. It is not disputed but that floors were a necessary part of the power house. When, however, we seek to ascertain upon whom the duty devolved of furnishing the floors, we are met with two contentions, the jflaintiff insisting that, as there is nothing in the contract referring specifically to floors, all that devolved upon the contractor was to erect an iron superstructure, while the defendant’s contention is that the plaintiff was under obligation to erect the entire power house, including the flooring. These diametrically opposite views cannot be resolved by a resort [386] to the language of the contract. This is not only inartificially drawn, but it is vague, indefinite and uncertain; nor are we aided by specifications of any kind. So that the whole question of just what the builder contracted to do in detail is left in doubt. This doubt and uncertainty the defendant attempted to remove by parol evidence as to what was said by the parties making the contract about the details of construction, particularly as to the flooring, all of which on the plaintiff’s objection was excluded. We think this was error, because, without some light borrowed from the contracting parties, it is impossible to clarify the doubt and obscurity which arise from the contract itself. The parol evidence thus offered did not tend to vary the contract or writing, but was directed to explaining it and to furnishing the data and specifications which the writing itself shows were omitted, and without which it would be impossible to settle the dispute that has arisen between the parties. We think, therefore, there should be a new trial, and for that purpose that the judgment should be reversed, with costs to the appellant to abide the event. Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide. event.