Crane v. Maynard

[411] By the Court, Sutherland, J. The judge was correct in the decisions made by him. The second agreement, as it is called, was nothing more than evidence of an extension of the time of performance of the original, agreement. It purports to be no more upon the face of it; and it is shown by the testimony of the witness who drew it, that such was the intent and understanding of the parties in relation to it. By the original contract, the defendant was to convey the premises to the plaintiff, and he was to give his bond and mortgage when the work was completed; which was to have been in the month of July, 1830. In December, 1830, the plaintiff became anxious to obtain the title, although the work was not entirely finished. The deed and mortgage were accordingly given, and the witness present upon the occasion states that he advised the parties, that as those instruments were to be given upon the completion of the job, the giving of them might be evidence of that fact; and to guard against such a consequence, advised the giving of what is called the second agreement, which is signed only by the defendant, and is simply a promise on his part to complete the work according to the original agreement by a given day. It was in no sense a substitution for the original contract; it was simply an admission on the part of the defendant that that contract was not performed. The promise to perform it at a future day was of no legal effect, except as evidence of an extension of the time by the plaintiff; and such was the actual understanding and intention of the parties. The judge, however, submitted it as a question of fact to the jury, whether the second agreement was accepted by the plaintiff in satisfaction of the first. This was the issue between the parties in relation to the second agreement. The jury properly found it in favor of the plaintiff. It was not necessary for the plaintiff in declaring to notice this second instrument: it was no part of his complaint that the defendant had not performed in time. No breach of that kind was assigned. The action was not brought until after the expiration of the enlarged time. The defendant could not have sustained an action on the original covenant, against the plaintiff for the consideration money, if that had not been [412] paid ; not having performed in time, he could not aver performance ; and without such averment, he' could not recover in covenant. His remedy would have been in assumpsit, for work and labor, &c., and the second instrument would have been evidence of the plaintiff’s agreement to accept performance at the extended time. Jewell v. Schroeppel, 4 Cowen, 566. Langworthy v. Smith, 2 Wendell, 590, and the cases there cited. So, if the plaintiff had in this action assigned as a breach that the defendant had not performed within the time limited as the original contract, the defendant could have availed himself of the second instrument as evidence of an enlargement of the time. Langworthy v. Smith, 2 Wendell, 291, and Henry v. Gilbert, 3 Johns. R. 528. If the plea is to be considered as setting up the second agreement by way of accord and satisfaction of the first, then it is disposed of by the verdict of the jury, which finds that it was not accepted by the plaintiff.; which is indispensable to its validity. Russell v. Lytle, 6 Wendell, 390. Upon the question of damages, the testimony was very contradictory. The witnesses differed very much in their opinions of the quality of the work; it was a fair case for the discretion of the jury, in view of all the circumstances of the case, and their verdict ought not to be disturbed. New trial denied.