#### Thomas S. Lossing, Respondent, *v.*Joseph W. Cushman, Appellant.

Second Department,

January 10, 1908.

Contract to erect building — evidence — varying written- contract by parol — failure to perform by day set-excused by extra work required — measure of damages.

In an action to recover on a building contract providing, that the new parts of the structure shall “have a cellar with no less than seven feet head room,” parol evidence is admissible to show that the parties agreed that the-cellar should not extend under the whole improvement but only under one comer thereof.

When the failure of a contractor to complete a building within the time agreed was due. to the fact that the owner required a cellar to be excavated in the ' solid rock under the entire new extension instead of under-a.sma-11 portion thereof, as originally agreed, the owner cannot insist upon full performance by the day set and is not justified in arbitrarily discharging the contractor and finishing the premises at his expense.

A contractor so wrongfully discharged may regard the contract as rescinded and recover the value of the work done and materials furnished less the amount already received by. him.

Appeal by the defendant, Joseph W. Cushman, ‘from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Dutchess on the 29th day of December, 1906, upon the report of a referee.

*694
      *Charles Haines,*for the appellant.

*W. Farrington*and *George Card,*for the respondent.

' Judgment affirmed, "with costs, bn ‘ the opinión of Joseph Morsohauser,, Esq., Referee. ' . '' ■ . '

Hooker, Gaykor, Rich and Miller, JJ,., concurred; Hirsohberg,.. P. J., not voting.

The following is the opinion of the referee:

Morschauser, Referee:

The plaintiff in this action seeks tó recover for work and labor performed and for materials furnished in the erection of a tenement house and an addition .made to "another house adjoining land belong ing to the defendant, known as the “Hormile Farm,” in the town of Bedford, Westchester comity; 1ST. Y. Some payments had been made to him by the defendant and a balance of about $2,000 was claimed to be due.' The answer, makes a.general denial of the complaint and. alleges, by way of a counterclaim that, in the early • part, of July, 1905, the -parties entered into a contract, in writing, by which the plaintiff agreed to furnish, procure and provide all work and material' necessary and proper in and towards and about the' buildings to the erected on the lot known "as -the' “ Hormile Farm,” in the town of Bedford, according to certain plans, drawings and specifications mentioned in the contract, under the supervision and'to the satisfaction of-the owner," for the sum -of $3,-525,; " that this contract required that the buildings should be completed not later than September 1, 1905 ; that they should be constructed . ’in."a good, substantial and workmanlike manner,, "and that' -time' should be regarded as the essence of the contract. It was further, alleged" that the contract provided; in case plaintiff should fail or refuse to perform the stipulations of- the contract • on liis part,- ■ and should fail to complete the building at the ' time agreéd"" upon, the owner should be at liberty; after three days?- notice,' to terminate the employment of the contractor,- take possession of the." premises and complete the buildings at, the expense of the "Contractor: '■ The answer then sets forth the failure of the plaintiff' to complete . *695the buildings and the giving of the notice' provided for, the discharge of the plaintiff, the taking possession by the defendant, and the completion of the building, at a cost largely in excess of the unpaid part of the contract price.

The plaintiff in reply admits the making of the contract, but alleges by way of defense to the counterclaim that defendant directed many changes in the work to be done under the'contract, • and hindered and delayed' plaintiff in the performance of the work and prevented him from completing tlié building at the time provided for in the contract. He also says that defendant refused to allow him to go on and complete the work; that he took possession of the tools and materials which-plain tiff had provided for the performance of the contract, though plaintiff was ready and willing at all times to proceed and complete the performance of the contract on his part. '

The making of this contract, the failure to perform it on the ' part of the plaintiff and the discharge by the defendant, are facts conceded or -not controverted. The vital question is, was the plaintiff rightfully discharged. If he was, he cannot recover in'.this action and the defendant would be entitled to recover upon "liis counterclaim the necessary cost to him of completing the buildings according to the plans and specifications, less the sum unpaid on the • contract. The determination of this question depends upon some minor facts which aré not disputed and .upon some other more important ones, as. to which there is a sharp conflict in the testimony. It is conceded that defendant made some small changes in the plans and required some extra work to be done, which would naturally make additional work and which might require an- extension of the time for the completion of the job. The principal change which the plaintiff claims to' have been made, and which necessarily delayed the work a long time, was the excavation for a cellar under the whole of the extension of the new house, and which had to be made in a solid rock. If the making of this excavation was not required by his contract; a delay in the work was necessarily caused thereby, and the failure to . complete the job by September first did not authorize the defendant to terminate the contract and exclude the plaintiff from the premises. It is claimed by the defendant that the clause in the specification “ New part to *696have cellar with no less than seven feet head room,” required an excavation Under the whole structure, and if there had been no evidence bearing upon-that, question, I should be disposed to agree with defendant’s contention as to this. But the plaintiff claimed that in the negotiations which preceded the making of the written contract, and when he was taking defendant’s statements upon which he was to make his estimate of the- cost and fix the price for doing the entire job, the defendant said that he only wanted a cellar eight by twelve feet in size, and plaintiff then marked upon one corner, of the plan a rectangular block with the figures *“*8 x 12.” The right to introduce this evidence of what was said before the written-contract was made, and to have the contract construed accordingly, I think is justified by a long line of judicial-decisions. -

*First.*If the language is ambiguous- or uncertain and the word *“*cellar ” as used has a technical meaning so as to be understood in a different way by some people, then parol.evidence may be resorted to to explain the meaning and to show how it was understood by the contracting parties.

In *Collender*v. *Dinsmore*(55 N. Y. 200, 210) the court says: “ It is true that as a contract or agreement the prior verbal negotiations and parol undertaking were merged in the written contract; but there are cases holding in effect that the prior negotiations and conversation of the parties can be given in evidence when there is an ambiguity to show in what sense particular words or phrases were used by the parties in making the contract.” *(Dana*v. *Fiedler,*12 *N.*Y. 40; *Moore*v. Meacham, 10 id. 207.) The defendant claimed on the trial that the word “ cellar ” as used in the. specifications had a technical meaning in the building trade, or among builders and architects, and he. introduced evidence to that effect and. sought to show that it meant an excavation under the whole structure. Defendant did not satisfy me of this by the proof.

*Second.*Evidence of their prior negotiations and conversations are also admissible for the purpose of showing what the parties meant by the language in the contract. In *Henry*v. *Agostini*(12 Misc. Rep. 15), where the written contract was to' furnish frames and-sashes for *“*windows ” in defendant’s buildings* parol evidence was held to be admissible, to show that only exterior ahd not interior windows were intended. *(Austin*v. *Southworth,*13 Misc. Rep. 45; *697
      *La Chicotte*v. *Richmond R. & El. Co.,*15 App. Div. 380; *Chase*v. *Senn,*13 N. Y. Supp. 266.)

The evidence upon the question as to whether 'the cotiversátion testified to by the plaintiff in relation to the-cellar was had is denied by defendant. But the witness Mellius,. who was at one time plaintiff’s foreman but is not now in his employ, corroborates him. He testifies that he was present and heard the conversation, and states it substantially as given.by the plaintiff thus sustaining his contention, and I feel bound to find that the defendant did tell'the plaintiff when he was asking for an estimate of the cost of the building, that he wanted a cellar only eight by twelve feet, and plaintiff made his estimate accordingly. •

The defendant having required this additional work to be done, and other changes made, he thereby delayed the completion of the job for a considerable time. The excavation was in a solid rock and the evidence is that it required about one month or more to excavate it. The delays thus caused by- the acts of the defendant in the making of changes and' the doing of extra work deprived him of the right to insist upon full performance on the first of September, and the failure of the plaintiff to have the work .completed on that day did not justify the defendant in-arbitrarily discharging him and in taking possession of the premises- and. refusing to allow plaintiff to continue the work.

As plaintiff was wrongfully discharged, he had a right to regard the contract as rescinded and is entitled to recover the value of the work done and of the materials furnished, less the amount paid to him. The proof on the part of the plaintiff is that this, amount is $3,338. -The defendant offered no proof on the subject. The plaintiff was paid $1,860, and the balance due him is $1,478.

The decision that the discharge of the plaintiff was wrongful disposes of the'defendant’s counterclaim, and it is perhaps needless to say anything in regard to it, although much might be said in criticism of this, considering the amount expended by ¿defendant to complete building, Ho thing can be allowed thereon.