#### John J. Fish, Respondent, v. Henrietta Hahn, Appellant.

First Department,

February 7, 1908.

Contract — compensation based, on actual cost of building—evidence as to estimated cost — dismissal of complaint.

Where plaintiff’s complaint and proof were to the effect that he entered into a contract with defendant to purchase a lot, secure a loan and superintend the construction of a building to be erected by her and that his compensation was to be ten per cent of the “actual cost of the building ” and that the *174defendant awarded the contract to a third party and prevented him from pei'- ■ forming, it was error to admit evidence as to the estimated cost of the building, it having been completed; as the plaintiff was entitled to recover, if at all, ten per cent of the actual and not of the estimated cost.

In the absence of proof as to the actual cost of the building, the complaint should have been dismissed or a verdict directed for the defendant.

As it was conceded that the defendant was entitled to recover upon, her counterclaim, it was error not to deduct this amount from the amount found due the - plaintiff.

Appeal by the defendant, Henrietta Hahn, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York oh: the 6th day of June, 1907, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 17-th day of January, 1907, upon tile verdict of a jury, with notice of an intention to bring up for review upon such appeal the said judgment of the City Court, and an order of said City Court denying the defendant’s motion for a new trial made upon- the minutes. .

*Charles JL.*Burr, for the appellant.

*August P.*Wagener, for the respondent.

McLaughlin, J.: -

This action, was brought to recover damages for the. breach of' a contract. The complaint alleges, in. substance, that the plaintiff was employed by the defendant to purchase, a plot of land, secure a loan.of $5,000 thereon, and thereafter to superintend the erection of a building upon such lot; that for the services to be thus rendered the defendant agreed to pay him ten per cent of the actual cost of the building; that the plaintiff fully performed the contract on his part, except in so far as prevented by defendant; that the estimated value of t-lie cost of the building was $9,295.95, and that he was entitled'by reason.of his contract to ten per cent of that amount, less $250 which had been paid to him, for which sum judgment was demanded with interest. The answer denied the material allegations'of the complaint, alleged- payment, and set up a counterclaim of $250, the amount due'on a promissory note made by plaintiff to defendant.

*175In the reply, plaintiff admitted the execution and delivery of the note and its non-payment, but alleged that it was agreed when given that the amount of the same should be deducted from whatever was coming to the plaintiff under Ms contract with the defendant.

At the trial it appeared that the defendant, contemplating the erection of a stable, entered into an oral contract with the plaintiff by which he was to purchase for her a lot, procure a loan of $5,000 thereon, and also obtain plans and specifications for the building; that the lot was purchased, the loan obtained, estimates submitted, and the erection of the building commenced ; that some time thereafter the plaintiff borrowed from the defendant $500 in cash, and a few days later a settlement was had between the parties by which it was agreed that plaintiff was entitled to $250 for the services rendered by him “ to date,” and he gave his note for the remaining $250; that subsequently the defendant notified the plaintiff that she had awarded the contract for the erection of the building to a third party and his services were no longer desired; that he insisted upon going on with what he alleged was his contract in superintending the erection of the building,- but was prevented by defendant from doing so. Certain estimates relating to the cost of the building were introduced in evidence over defendant’s objection, which showed that the building to be erected would cost $9,295.95. Ho proof whatever was offered as to the actual cost of the building, though it had been completed at the time of the trial, and the contractor who erected it was a witness.

At the close of the plaintiff’s case defendant moved to dismiss the complaint upon various grounds, among others, that the plaintiff had failed to prove the cause of action set out in the complaint, in that he had offered no evidence as to the actual cost of the building. . The motion was denied and an exception taken, and a similar motion was made at the close of the whole case, which was also denied and an exception taken, and the court was requested to direct the jury to render a verdict for defendant on substantially the same ground, which was also denied and an exception taken.

I am of the opinion the exceptions were well taken. The action, as already indicated, is to recover damages for breach of a contract. The complaint sets out its terms,' If; alleges that the plaintiff was to *Ú9 o&vtm things*and, among *others,((to wñteh*the progress *of*and *176generally superintend the-work and building during the excavation of tile cellar and the erection of the building until -the completion thereof, for which defendant agreed- and promised' to pay-plaintiff-' * *' * ten per cent, to be figured on the actual cost of the building, defendant to pay as the work progressed and as each of the sub-contractors was entitled to payment.” ' .

At the trial, the proof on the part of the plaintiff tended to establish the contract as alleged, and as the *onty*contract under which plaintiff rendered1 any service, whatever. He himself testified: ‘-I was to be paid at the rate-of ten per cent-on the total cost of the com struction-of the building. * -* That was tó be paid in monthly installments. I'was to submit bills to Mrs. Hahn every month for money expended during the month, and I was to receive a check for that,, to be paid to the subcontractors, and ten per cent' additional for my services; ten .per cent based on the total amount-of the cost of the building. * * * My -compensation under that ■'contract with the defendant for the superintendence of- this stable building was to be ten per cent of the cost of the - erection of the. building. * *'■ * I was tO'su.perintend the erection and construction of that stable and for my services as superintendent I was to .receive.ten per cent of the. actual cost of the stable, and that is all .the services I was to perform.” , notwithstanding the specific allegation of the complaint that plaintiff’s compensation was tobe based’, on the actual cost of the building, and his prooff to the same effect, a recovery lias nevertheless been had, not for ten per cent of the actual cost of the building, but for ten. per cent of what somebody estimated it would cost, before it was erected. Whether the- building cost more or less than the estimate is a pure' speculation. Obviously, a recovery based' on- such evidence cannot .stand. Before plaintiff could recover, therefore, lie had' to prove, under -the contract alleged and proved, what the building actually cost. Be did not do this and, therefore, the -complaint should have been dismissed or a verdict directed for the defendant. ' - .

The estimates of the cost of the building should -not have been admitted in- evidence. They did not prove or. tend to prove plaintiff’s cause of action. He-was.entitled to-recover, if at all, ten per cent of the actual, and not of the'estimated.eost of ,.the building.

The determination • of the Appellate Term and the judgment of *177tlie City Court, therefore, must be reversed; and inasmuch as there must be a new trial, it may not be out of place to call attention to another error which occurred at'the trial. Tlie plaintiff, according to the allegations of his complaint and proof, had but one contract, by the terms of which he was entitled to ten per cent of the actual cost of the building, less $250 paid thereon. This is tlie amount for which judgment is demanded, with interest from a date stated. Tlie answer sets up a counterclaim upon a promissory note for $250 and interest from February 2, 1903. That the defendant was entitled' to' recover upon this counterclaim was conceded. The plaintiff, however, had a recovery for the amount claimed in the complaint, no deduction being made for the amount due on the promissory note and interest thereon. This amount should have been deducted from the amount found due the plaintiff, and the jury should have been so instructed.

The determination of the Appellate Term and the judgment of the City Court are reversed and a new trial ordered, with costs to appellant to abide event.

Patterson, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.

Determination, judgment and. order reversed and new trial ordered, costs to appellant to abide event.