#### Charles Farnham and Calvin Pollard *versus*William E. Ross and others.

The plaintiffs entered into a covenant with the defendants, whereby they stipulated to build and finish the Masonic Hall in tire city of New-Xork, within a certain period, under a penalty of thirty dollars, as liquidated damages for each and every day the work should remain unfinished after the stipulated time. *Held,*that by the true construction of the covenant, the building was not to be finished *absolutely*within any stipulated period ; but if not completed by the time fixed, the plaintiffs were liable, for each day’s delay, to the amount of the liquidated damages.

The plaintifis completed the building within the specified time, with the exception of the front doors, and a certain stair-way. These would have been completed also, but for the defendants themselves, who made certain alterations in their plan of the stairs, and delayed the finishing of the doors. In an action upon the covenant for the contract price of the work, it was held, that this proof supported the averment of performance on the part of the plaintifis, and that the defendants could not interpose, as a defence, a delay occasioned by their own acts. As the plaintiffs would, but for the defendants, have completed the building within the specified time, their conduct was tantamount to an averment of performance on their part, and a refusal by the defendants, which are held to be equivalent to an actual performance. :

Covenant upon articles of agreement for building the Masonic Hall, in the city of New-York. The defendants, in their own names, but describing themselves in the body of the articles, as a “ Committee of the Masonic Hall Association,” entered into a contract with the plaintiffs, under seal, bearing date the 16th day *168March, 1827, whereby the latter agreed, in consideration of the sum of $10,750, to be paid to them by the defendants at such times as might be required, in proportion as the work advanced, “ at their own proper costs and charges to furnish all the mate- *“*rials, work, and labor necessary, or to be required for finishing “ the Masonic Hall,” then building in Broadway, in the city of New-York, *“*and build the same, together with the stair-way in “ the rear of said Hall,' and perform said work according to the “ specifications” annexed to the agreement, “ and to execute the *“*whole according to the plans to be furnished by Hugh Reina- *“*gle,” &c. Certain parts of the work were to be completed by the first of May, 1827, “ and all the rest of the work,” undertaken by the plaintiffs, by the first of June thereafter, under a *“*penalty “ of thirty dollars, as liquidated damages, for each and every day” the work should remain “ unfinished after the day last men- “ tioned.”

The declaration counted upon the articles of agreement, and averred a general performance on the part of the plaintiffs, and that they had “ built the stair-way in the rear of said Hall,” and completed the whole work on the said 30th day of June, &c., setting forth the non-payment of the money, as the breach on the part of the defendants.

The defendants pleaded payment, and several special pleas, putting in issue the performance of the covenant on the part of the plaintiffs, and also that the plaintiffs were indebted to them in the sum of $3000, “ liquidated damages,” for not having completed the work for one hundred days after the said first of June, and which they claimed as a set-off. They also added a notice to their plea, in which they claimed to set-off the sum of $3000 against the demands of the plaintiffs, which sum they alleged the plaintiffs had forfeited by the non-performance of the work within the specified time.

Issues being joined upon the pleas, the cause was tried before the Chief Justice.

At the trial, it appeared that the plaintiffs had completed all their work according to the stipulations of the covenant, and with*169in the specified time, except the stairs therein referred to, and the front doors of the building, which were not finished until some time afterwards. But it also appeared that when the plaintiffs were about to build the stair-way, the defendants directed that an iron stair-way should be substituted for the wooden one described in the articles, and it was agreed that the sum of $90 should be deducted by the plaintiffs from the amount of the contract, on account of this change. But for this, the stairs would have been completed by the time specified in the articles. With regard to the front doors, it appeared that shortly before the said first of June, the plaintiffs employed several workmen to complete the doors by that day; but Mr. Reinagle, on the part of the defendants, desired that the work on them might not be hurried, as he wished the doors to be constructed by two particular workmen. For this purpose, he applied to Brown, one of the defendants, who consented to have the doors completed by these two workmen; notwithstanding they might not thereby be completed by the stipulated time ; and temporary doors were put up by the plaintiffs, to secure the building while the principal ones were in the workmen’s hands.

The counsel for the defendants contended, that this testimony did not prove a performance of the covenants on the part of the plaintiffs; but the Chief Justice overruled the objection, and directed the cause to be submitted to the jury, who, after having heard the counsel for the parties, returned a verdict for the plaintiffs.

The defendants having excepted to the opinion of the presiding Judge, *Mr. Staples*in their behalf now contended.

I. That as the declaration was upon a covenant, the plaintiffs were bound to show, that they had performed it within the time, according to the terms of the covenant. This they had not done, for by their own witness it was proved, that the door and stairway were not completed until long after the first of June. The plaintiffs could not therefore recover in this form of action. *170[3 *Term R.*590. 8 *John. R.*392. 1 John. Cases 22. 4 Cowens *R.*564. 7 *Taunt. R.*6*46.]*

II. That no parol agreement could be given in evidence under the declaration to charge the time or vary the the terms of the contract. [3 *J. R.*528.]

III. The admissions attempted to be proved were not the admissions of all, but only of a part of the defendants.

*Mr. F. Tallmadge*contra,

observed that the last objection, if well founded, came too late as it was not made at the trial. There was enough before the jury to show that the defendants knew of, and assented to the alterations and delays, all of which were occasioned by them, and not by the plaintiffs.

II. The defendants waived all objections as to time, and cannot therefore set it up now against the plaintiffs’ right of recovery. The acts done by the plaintiffs, were tantamount to a strict performance on 'their part, for they would have completed their work by the time stipulated, but for the defendants.

III. The plaintiffs were not bound-to finish the building by the first of June. This is not the true construction of the covenant. They might have delayed its completion for a reasonable time, but would have been liable to a penalty of $30 per day, for every day’s delay after the period stipulated. But such delay would be no breach of the covenant on their part, which would prevent them from recovering in this action.

Oakley J.

This case comes before us on a bill of exceptions, taken by the defendants. The action is on a covenant, by which the plaintiffs stipulated, to build the Masonic Hall, in the city, and to finish it according to certain specifications, annexed to the contract and to the plans to be furnished by an agent of the defendants. Certain portions of the work were to be completed by *171the first day of May, after the date of the contract; and the whole by the 30th of June, *“*under a penalty of $30, to be paid by “ plaintiffs as liquidated damages, for every day, that the same should remain unfinished, after these periods respectively. By the contract a wooden stairway was to be put up in the building, and the defendants afterwards, and when the plaintiffs were about to commence the building of the stairs, directed an iron stairway to be substituted, which was not finished until after the first day of July. It also appeared that, the main door of the building was not completed, by the time specified in the contract; but when the plaintiffs were about to employ additional workmen to finish it within the prescribed period, the defendants requested, that it might be done by two men only, with whose work they were pleased; and that it was accordingly done by them.

Upon this evidence, it is objected, that the plaintiffs have not shown a performance of the covenant on their part. It is well settled, that where the action is on the covenant itself, the plaintiff must show a strict performance, of the stipulations on his part, and within the time limited by his contract; and that evidence of a parol agreement, to extend the time, cannot be given to excuse the want of such performance. *[Phillips v. Rose,*8 *J. R.*392. *Little v. Holland,*3 *J. R.*590.] It appears to me, however, that the defendants, in the present case, have mistaken the true construction of the covenant. The building in question was not to be finished absolutely within any stipulated period. If not completed by the 30th of June, certain stipulated damages, were to be paid by the plaintiffs for the delay : but the evident intent of the parties was, that the work should nevertheless be completed, under the contract. It was not necessary therefore for the plaintiffs to have averred, or proved that the house was completed by the 30th day of June. A general averment of performance on their part was sufficient; and the proof in the case supports such an averment.

If, however, the true construction of the covenant were otherwise, I should still be of the opinion, that the plaintiffs have shown performance on their part. They were proceeding to complete both the stair-way, and the door within the time limited, when *172they were prevented from doing so by the interference of the defendants; who directed a different course of the work. This was in fact a tender of performance on the part of the plaintiffs, and a refusal by the defendants, and these are held to be equivalent to an actual performance. And it is also held, as a sound principle, that he “ who prevents a thing from being done, shall not avail “ himself of the non-performance which he has occasioned.” These principles are recognized and established, in *Fleming v. Gilbert,*(3 *J. R.*631.) and are entirely applicable to the present case.

*Motion for a new trial denied.*

[F. A. Tallmage *atty. for the plffs.*Wm. S. Johnson, *atty for defts.]*