#### Patrick Flaherty, Respondent, *against*Henry C. Miner *et al.,*Appellants.

(Decided April 1st, 1889.)

In an action for a balance due under a written contract for excavating, the defense to which was that plaintiff had not obtained an architect’s certificate, as required by the terms of the contract, the complaint alleged that such provision had been inserted in the contract by mistake, and asked a reformation of the contract. On defendant’s stipulation that the case might be “tried before a jury with the same effect as if tried at the equity term as to the reformation part,” the cause was dismissed from the equity calendar and directed to be tried by a jury. At the opening of such trial, defendant’s counsel stated that his client made no claim that plaintiff was to do anything other than the excavating, removing earth, etc., payments for which were to be made as the work progressed; and in conducting the trial, defendant’s counsel objected to allowing evidence as to the reformation of the contract, as not in the case. *Held,*that defendant must be considered to have waived his claim that payments under the contract were only to be made on the architect’s certificate.

Defendant also alleged an abandonment of the contract by plaintiff, and testified that thereafter he employed others to remove the earth, and gave a ticket for each load, and made bis settlements from such tickets. *Held,*that he could not testify as to the number of tickets he had for earth removed. And testimony that masons employed by him had to get an extension of time in consequence of plaintiff’s delay was inadmissible, as a mere conclusion.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The action was brought to recover $2,600, with interest from October 1st, 1881, as a balance due under a written contract for excavating the cellar for the building of defendants, and for $500 for extra work under verbal contracts. The facts are stated in the opinion.

At the trial, defendants gave testimony tending to show *174that plaintiff abandoned the contract, and defendant Miner testified that he thereafter employed others to cart away the earth, giving them a ticket for each cartload,'and made his settlements with them from such tickets; but to the question, “ How many tickets had you for earth that was removed out of that cellar, what number ? ” an objection by plaintiff was sustained, and defendants excepted. Testimony of Miner that masons he employed to do work had to get an extension of time in consequence of the delay of plaintiff to keep up with his contract, was also objected to by plaintiff, and the objection sustained, to which defendants excepted. Motions by defendants to dismiss the complaint were denied, and the jury found a verdict for plaintiff for $2,000, with $780 interest. A motion by defendants for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying their motion for a new trial defendants appealed.

*James M.*Smith, for appellants.

*Henry*Schmitt, for respondent.

J. F. Daly, J.

The principal contention of defendants upon this appeal is that, by the contract between the parties, plaintiff was to obtain the architect’s certificate as a condition precedent to payment, and that, as he had failed to obtain such certificate for the work for which he claims in this action, he ought not to recover. This objection may, I think, be disposed of by a reference to the stipulation entered into by defendants for the purposes of the trial. The plaintiff had alleged in his complaint that there had been inserted in the. written c'ontract, by mistake (plaintiff being unable to read or write), certain provisions, among others those relating to the architect’s certificate, which were no part of the actual agreement between the parties, and he prayed that the contract might be reformed by striking out those provisions. The cause was placed upon the equity calendar of the court by plaintiff, but upon defendants stipulating as herein*175after mentioned, the cause was stricken from the equity calendar and a trial by jury directed. The stipulation of defendants was that the case may be tried before a jury with the same effect as if tried at the equity term as to the reformation part, and at the opening of the case defendants’ counsel stated, “ that there was no necessity for any reformation of the contract * * that the defendant makes no claim that the plaintiff was to do anything other than the excavating, digging, removing of all earth, boulders, and other matter, and leave sand for completion of work on the premises 312 and 314 Eighth Avenue for the sum of $3,500, payments to be made as the work progressed; that the contract did not include underpinning of adjoining premises, and rocks were to be removed by other parties.”

In this statement of claim as to the obligations of plaintiff under his contract with defendants, there was an omission or a waiver of any claim that payments under the contract were conditioned upon the procurement of an architect’s certificate. All evidence upon the issues arising upon the pleadings as to reformation of the contract were excluded upon defendants’ objection, and it would seem that the question of the architect’s certificate was thus eliminated from the case. The stipulation and statement of defendants as to their claim under the contract were made in order to relieve the plaintiff and the court from trying thé issue as to a reformation of the contract, and conceded plaintiff’s position as to the actual contract between the parties.

But even if the stipulation and statement did not have this effect, and the plaintiff were bound under his contract to procure the architect’s certificate, there was abundant proof in the case to show that defendants waived this requirement. That question, together with the issue of fact as to the alleged abandonment of the work by plaintiff, were submitted fairly to the jury, and their verdict in plaintiff’s favor has ample evidence to sustain it. The evidence of waiver was admitted without objection, and defendants could not after-wards object that it had not been pleaded.

The exceptions of defendants were not well taken. The *176motions to dismiss the complaint were properly denied. The judge’s charge was proper. The exception at folio 210 was not good, as the questions as to the architect’s certificate wére out of the case. The exception at folio 267 was not well taken, as the question did not call for the earth removed, but the number of tickets, upon which defendant settled with third parties for cartloads of earth. The exception at folio 285 was not well taken, as the question called for a conclusion. There is no exception at folio 201. The exception at folio 331 does not call for a reversal, because the question allowed to be put to the witness was not in effect answered. The previous answer of the witness (which was not objected to) contained in substance the same testimony as that objected to.

The judgment should be affirmed, with cbsts.

L arremore, Ch. J., and Allen, J., concurred.

Judgment and order affirmed, with costs.