#### Henry Close *et al.,*Respondents, *against*Matilda Clark *et al.,*Appellants.

(Decided April 7th, 1890.)

A provision in a contract to build a house that the work shall he completed by a certain time and paid for on completion, does not make time of the essence of the contract, and is waived where alterations are made in the plans by mutual assent, or where, after the expiration of the time, the owner notifies the contractor to complete the work.

A mechanic’s lien is invalid where founded upon a notice of lien filed by a contractor for the unpaid balance of the whole contract price, which states that ail the work and materials have been performed and furnished, when in fact part of the work was unperformed, and some of the materials not furnished.

Under a general denial in an action to enforce a mechanic’s lien, filed for the unpaid balance of a contract to furnish all the work and materials in a building, defendant may show that he furnished part of the materials or is liable as guarantor or surety for plaintiffs thereon.

Appeal from a judgment of this court entered upon a report of a referee.

*92The facts are stated in the opinion.

*W. Stebbins Smith*and *Jacob*Fromme, for appellants.

*Samuel F. Duffy,*for respondents.

Larremore, Ch. J.

This action was brought for the foreclosure of a mechanic’s lien. The complaint, among other-things, alleged that plaintiffs “did and performed certain work, labor and services, and furnished necessary materials therefor, which work and materials consisted of building and erecting on the premises above described a house or building according to the terms and conditions of the said contract.”

We think the learned referee erred in his findings as to what the contract .referred to in the complaint actually was. This agreement was in writing, and was executed in duplicate. The copies correspond, except that after the signatures in the one retained by defendants and produced by them at the trial was added the following: “P. S. The whole building to be finished on or before the 1st day of January, 1888, A.D.” We think the weight of evidence is strongly in favor of the view that this, postscript was added, after the signing doubtless, but still, upon the same occasion, and in the presence and with the consent of all the parties. Such postscript being orally assented to, was, therefore, as binding as the foregoing instrument actually subscribed, and in reality became an integral part of the agreement under which the work was done *(Dutch*v. Mead, 36 N. Y. Super. Ct. 427, 59 N. Y. 628). But though the weight of evidence substantiates defendants’ claim as to the contract, and though the referee erred in this respect, we cannot see that any actual harm resulted from such error; and we should not reverse upon this ground. It appears that there were departures by mutual consent from the original plan, and, furthermore, that after the time prescribed by the contract had expired the defendant Clark notified plaintiffs to go on and complete. Under competent authorities, either of these circumstances would operate as a waiver of the time condition in the con*93tract. It has also been directly held, that in a contract of this character a provision that the work shall be completed by a certain date and paid for upon completion, does not make time of the essence of the contract; and that if the builder proceeds afterwards with the assent of the other party he may recover at the contract price *(Dillon*v. *Masterson,*39 N. Y. Super. Ct. 133).

This lien was filed for the unpaid balance of the whole contract price. In the notice of lien it is stated that all the work and materials had been actually performed and furnished. Leaving out of consideration a large number of departures from the contract which the referee finds were waived or assented to, he finds directly that in several particulars, more or less substantial, the contract was not completed. He finds that work and materials to the value of $93 were required to complete the same. I cannot see, therefore, why, on respondents’ own showing, the present case does not come squarely within the reasoning of *Foster*v. *Schneider*(50 Hun 151). The material fact is not that the builders had completed their contract, but in an inferior manner; it is that they had not completed it at all. The referee’s sixth finding of fact specifies several omissions, all of them of some importance. The plaintiffs entirely failed to supply these articles although notified to do so. They cannot argue that their statement in the notice of lien arose from a pardonable difference of opinion, they holding that they had in all respects kept their agreement, and the referee having disagreed with and found against them only as to the quality of their work. Confessedly they had not attempted to provide several things called for by the contract. We think, therefore, the allegation in the notice was untruthful, and might have been misleading to subsequent lienors and the public, and, for the reasons given in the opinion in *Foster*v. *Schneider (supra),*the lien must be declared invalid.

There is also ■ an exception in the case which deserves notice. On the examination of Matilda Clark, the defendant, she was asked: “Q. Now did you do anything in reference *94to the lumber in the house with Mr. Close ? (Objected to as having nothing to do with this case. Counsel for defendants states that this question is asked for the purpose of showing that the defendant, Mrs. Clark, and not the plaintiffs, furnished the lumber that went into the house in question. Objection sustained. Exception by defendants). Q. Did the plaintiffs furnish all the materials that the contract called for' to build the house ? A. No, sir. Q. What portion of the materials did they not so furnish ? A. The lumber. Q. How much? A. All the lumber in the house. Q. Who furnished it? A. I went security for it. Q. Do' you remember the cash amount of lumber not furnished by them ? (Objected to on the same grounds. Sustained. Exception by defendants).”

We think the defendants should have been given the fullest opportunity for showing what this arrangement between the parties as to the lumber was. The learned counsel for respondents contends that no evidence of this character was admissible because the answer is a general denial,-and that by the authority of *McKyring*v. *Bull*(16 N. Y. 297), payment, or part payment, cannot be proved as a defense under such a pleading. But this testimony would properly come in under a general denial, as tending to show that plaintiffs had not done one very important thing they allege they did in the complaint, *i.e.,*furnish all the materials for the house. If the defendant herself furnished such lumber, this allegation of the complaint would be effectually disproved. By the referee’s action in admitting part of the testimony on this point, and excluding the rest, we are left in the dark as to what the actual transaction was. But it certainly appears that defendant claims that she supplied the lumber. If this were the fact, even if the notice of lien had contained no untruthful allegations, she would certainly have been entitled to a very substantial deduction from .the contract price. If the original credit was given to plaintiffs, but defendant was obliged to go security for it before it could be obtained, and is still liable as guarantor or.surety for the unpaid lumber bill, we do not *95think that plaintiffs “ furnished the materials ” within the meaning of their contract. They used merchandise which would not have been supplied but for defendant’s credit. The practical result of holding that they absolutely furnished the materials, and were absolutely entitled to the full balance of the contract price, under such circumstances, might be to turn the money over to irresponsible persons,.and leave defendants without redress to pay for the lumber a second time. Under this state of affairs', if the lumber merchant was willing to trust to defendants’ responsibility, he would not be compelled to file a lien, and defendants would not receive even that protection.-" This is an action in equity, and the court would therefore use every effort to do substantial justice between the parties, and it seems to me, under the hypothesis last stated, would have power to withold the amount of the lumber bill from plaintiffs on the ground that they had not furnished the materials, especially if defendants stipulated that the judgment contain a provision requiring her to pay the amount directly to the lumber merchant.

We are, of course, discussing a hypothetical case. If defendant has actually paid for the lumber, her right to prove the amount and claim deduction thereof could not be questioned. What has been said shows the necessity that existed, in any view of the controversy, of bringing out fully the facts of this transaction.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

J. F. Daly and Bischoff, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.