Larson v. Schmaus

Vanderburgh, J. This action is brought to recover a balance alleged to be due plaintiff for labor and services performed and materials furnished in and about the erection of a house for defendant, [413] at his request, and for the agreed price of $1,055. The defendant-alleges, in his answer, that the work was done under a special contract, which is fully set out, and which, among other things, contained the following stipulation: “Said Schmaus to pay all bills for material, and stone-work, upon an order being presented with said bills, drawn by said Larson, which amount said Schmaus is to deduct from said $1,055; the balance so remaining to be paid to said Larson when the building is completed and ready for occupancy.” The answer also-states that there is a large amount still due and unpaid for materials furnished to plaintiff and used in the erection of the building, and: that the premises are subject to mechanics’liens therefor. The reply admits the contract, but alleges that there are no outstanding bills, unpaid or liens in favor of third parties. Though the terms of the-contract are not stated in the complaint, but the plaintiff declares, generally as for a balance due upon a completed contract, there is-nothing inconsistent with it in the reply, and there is no departure in the pleading. The defendant insists that the complaint should have stated the-terms of the contract, and specially alleged compliance with .them. And it must be admitted that this would have been more in conformity with the strict rule of the code practice. Pomeroy on Remedies, § 544. But the complaint, though general in its terms, has all the-elements of a good cause of action; and, in so far as the substance of the pleading is concerned, it should be held sufficient, especially, since, where the plaintiff has fully performed an express contract on his part, he may state his cause of action for the recovery of the-amount due him substantially in the form of the indebitatus assumpsit count. Higgins v. Newtown & F. R. Co., 66 N. Y. 604; Ludlow v. Dole, 62 N. Y. 617; Hosley v. Black, 28 N. Y. 438; Pomeroy on Remedies, § 543. And, if this be so, under the liberal interpretation! to be placed upon pleadings, it cannot be a substantial variance that, the agreed price is named. Sussdorff v. Smith, 55 N. Y. 319; Scott v. Lilienthal, 9 Bosw. 224. There is nothing in the nature of the stipulation above quoted' which bound the plaintiff to a literal compliance with its terms. He - might himself furnish the’ materials and complete the contract at his. [414] own expense. It was not an essential condition that he should draw orders therefor as the work progressed; and if there are no liens, which we think is not to be presumed and which plaintiff denies, it is immaterial that he pay the balance unpaid after the work is all completed to plaintiff instead of to third persons. We think the pleadings fairly make up the issues between the parties so as to present the substance of the controversy, and that the trial ought to have proceeded upon the merits. Whatever questions there are in the case must arise upon the evidence, and not upon the pleadings. Higgins v. Newtown & F. R. Co., supra. Order affirmed.