#### Henry Tone, plaintiff and respondent, *vs.*Francis J. Doelger, defendant and appellant.

Where two operations are necessary to fit stones to be placed in a wall, one of reducing them by blows of hammers to a suitable size and a degree of smoothness adapted to being dressed by masons with other proper tools, and the other of dressing them by masons with.such tools; and the parties to an agreement for blasting and excavating rocks, among other things, agreed that the rocks so blasted should be “ manufactured ”* ready for the masons ; *Held,*that the terms of such agreement were 'Sufficiently complied with by the stones being broken into proper sizes and shapes, and made sufficiently smooth to be submitted to masons for being dressed by them, so as to be fit to go into the wall. *Per*Jones, J.

(Before Robertson, Ch. J., and Jones, J.)

Heard June 8, 1868;

decided July 3, 1868.

Appeal from a judgment entered on the verdict of a jury. This action was brought to recover $2333.60, alleged to be due from the defendant on the contract set out in the complaint. The defendant was building a large beer vault on Ninety-sixth street, and employed the plaintiff to do the work. The plaintiff and defendant entered into a contract, in writing, by which the plaintiff agreed to do the excavating, and deposit the ground on both sides of the vault, and also agreed to fill in the earth again in regular courses, as the building progressed, and on the top of the arches, ’ according to directions to be given him as the work progressed. There was a well on the ground where the earth was excavated, which the plaintiff agreed, by his contract, to preserve. The plaintiff also agreed to blast the rocks, *“ and manufacture them ready*for the masons,” and to leave them at a suitable distance from the building.

This action was brought to recover compensation, according to the terms of the contract, for work done under it by the plaintiff. In his complaint the plaintiff alleged performance of the contract on his part.

The defendant denied his indebtedness, and' refused to pay the plaintiff, on the ground that he, the plaintiff, did *252*not*perform his contract. In his answer he alleged that the plaintiff did *not*fill up with earth as the building progressed ; that he did *not*fill in on the tops of the arches, as he had agreed to do; that the plaintiff did *not*preserve the well, but filled it up with rubbish, and left it in that condition ; that he did *not*manufacture (dress) the stones ready for the masons; that he did *not*leave the stones at a suitable distance from the building.

The testimony of both the plaintiff and defendant’s witnesses showed that the plaintiff did not perform his contract.

Louis Burger, a witness called by the plaintiff, testified that he was the architect under whose directions the vault building was constructed. He swore that Tone “ did not fill in as the plans required, and although he was requested repeatedly to do so, he did not do it.” This witness also testified that the plaintiff did *unot dress the stones.”*Tone blasted them, and the masons dressed them. This witness testified that the masons had to hammer the stones into shape, to lay them in the wall. On his re-direct examination this witness testified, that the plaintiff only blasted the stones, but he did not dress them for the walls; he merely broke them out, and laid them there; he did not dress them ready to lay them in the wall. Michael Dunn, another of the plaintiff’s witnesses, testified, on his direct examination, that he was the person who blasted out the rock for the •plaintiff"; that he did nothing more than blast out the rock; some were fit for building, and some were not. Those which were not fit, were manufactured by other men. On his cross-examination this witness testified, that he did nothing more with the stone than to take the rock out.

When the plaintiff" rested, the defendant’s counsel moved to dismiss the complaint, on the ground that it appeared by the plaintiff’s own testimony, that he had not filled in the earth on the top of the vaults, as provided by the contract, and that he did not *dress*or *manufacture*the stones ready for the masons, in compliance with his contract. The motion was denied, and the defendant excepted.

*253After the evidence was closed on both sides, the defendant again moved for a nonsuit, on four grounds. The first two being substantially the same as the two previously relied on, and the other two being, (3,) that the plaintiff had not brought back and filled in the earth, according to his contract; (4,) that he had not preserved the well. The motion was denied, and an exception taken.

The case was submitted to the jury, who rendered a verdict for the plaintiff for $2005.29. Judgment was entered on the verdict, and the present appeal is from that judg-' ment, no motion for a new trial having been made.

*C. A. Kimble,*for the defendant, appellant.

1. The contract between the parties, set out *in extenso*in the complaint, has never been abandoned or rescinded. It is in full force, and the plaintiff seeks to recover on it, and alleges that it has been performed. The defendant denies that the plaintiff' has performed it, and his defense is grounded on the fact of such non-performance.

II. The court erred in not granting the motion of the defendant for the dismissal of the complaint, at the close of the plaintiff’s testimony. ■

1. The plaintiff’s evidence distinctly proved that the plaintiff had not performed his contract.

2. If the defendant, at the close of the plaintiff’s testimony, was entitled to a nonsuit, the error is not cured by the verdict, and the defendant is now entitled to a new trial. *(Ryan*v. *Fowler,*24 *N. Y. Rep.*412.)

TTT. The court erred in not granting the defendant’s motion to dismiss the complaint made at the close of all the testimony. Certain facts showing a non-performance of his contract on the part of the plaintiff were undisputed.

1. The testimony on both sides, and undisputed, showed that the plaintiff did not “ manufacture ” *(dress)*the stones ready for the masons. His contract required this to be done. The plaintiff' admits they were not fit to turn .the *254arch. Dunn, (who did the blasting of the rocks,) says, that he understood they had nothing to do but sledge the stones in a proper way for the masons to dress and put in the wall.

2. The testimony showed that the plaintiff,1 instead of preserving the well, filled it up, and had not cleaned it out or offered to do so. The plaintiff admitted that he had not preserved it.

TV". It is a well settled principle of law in this state, that 'if a party enters into a contract to do a certain thing, he cannot recover for his services unless he shows that he has performed his contract. *(Cunningham*v. *Jones,*20 *N. Y. Rep.*486. *Smith*v. *Brady,*17 *id.*173. *Pike*v. *Butler, 4 id. 360. Pullman*v. *Corning, 5 Seld.*93. *Paige*v. *Ott, 5 Denio,*406. *Sickels*v. *Pattison,*14 *Wend.*257. *Mead*v. *Degolyer,*16 *id.*632. *Champlin*v. *Rowley,*13 *id.*258. *Lantry*v. *Parks, 8 Cowen, 63. Jennings*v. *Camp,*13 *John.*94. *McMillan*v. *Vanderlip,*12 *id.*166.) The fact that the defendant is in the occupation of the premises and even receiving the benefit of the plaintiff’s labor makes no difference. (S*mith*v. *Brady,*17 *N. Y. Rep.*173.) The contractor can demand payment only upon and according to the terms of his contract, and if the conditions have not been performed, then the right. to demand it does not exist. *{Id.)*

*P. Byrne,*for the plaintiff, respondent.

I. The respondent proved his case as set forth in his complaint, and should have recovered the full amount due to him; he was not responsible to the appellant for the wrongful refusal of the adjoining owner to permit the taking of the 526 yards, &c. of earth. The same was placed there by the appellant’s direction; besides, the respondent offered to get the said quantity from another place.

H. Even if the respondent was obliged to furnish said earth, the jury have allowed the appellant a liberal amount *255in their several deductions (in the aggregate $400;) the earth was worth sixty-five cents a cubic yard.

III. It was a question of fact for the jury to determine, whether the respondent had fulfilled his contract; and the evidence was properly left to their determination; therefore, the grounds for the motion to dismiss the complaint, and the exceptions, &c. were untenable.

IV. The evidence on the part of the appellant was very properly not credited to the extent of the swearing of himself and some of his witnesses; he claimed too much; he sought to subject the respondent to “ between $400 and $500 ” as the expenses of “ *dressing*the stones,” and to between $75 to $100, for filling up the well (which had to be dug down, and could have been cleaned out for about $5,) and to digging trenches for which he was not liable, and the exception to the ruling in excluding the testimony in relation thereto is also not tenable.

V. The appellant paid to the respondent various sums of money after the alleged failures to perform the work.

VI. No motion was made for a new trial on the merits, at a special term, and consequently the case is not to be “ reviewed ” on the testimony, and no *grounds*of exception are stated in the notice of appeal; the appellant is, therefore, confined to the exceptions in the case.

VII. The case was fairly disposed of by the jury, and the judgment should be affirmed, with costs.

By the Court, Jones, J.

The only point made by the appellant’s counsel, on this appeal, is that the court erred in not dismissing the complaint upon the grounds urged at the trial. These grounds, although apparently six in number, are in reality but three, and are, that the evidence shows:

> 1st. That the plaintiff did not bring back and fill in the earth, as required by the contract.

> 2d. That he did not preserve the well. *2563d. That he did not manufacture the stone, ready for the masons.

With reference to the first ground, the evidence of the defendant’s architect is: “He (the plaintiff1) did fill it in on the top and side except with this ground which I thought necessary to cover the whole building in, but which was lying ahead and he could not get at it.” The ground here referred to is 525 yards of earth which the plaintiff had excavated and which, as he claims, he had placed on adjoining property at the direction of the defendant for his (the defendant’s) convenience, and which, when he went to remove this earth, the owner of those lots would not allow him to remove, when he endeavored to do so ; whereupon he offered the defendant to furnish 350 yards of other earth and allow seventy-five cents a yard for the balance, being the value thereof, which offer was rejected. Upon this claim there was contradictory proof.

If this claim furnishes an excuse for the non-performance of the contract in this particular, it called for a submission to the jury. I think it does furnish an excuse. The contract does not require the plaintiff to furnish earth of his own wherewith to fill in, but simply to replace and fill in with the earth which should be excavated from the defendant’s premises. If, then, the defendant by his own act prevented the plaintiff from using this earth for filling in, he, to that extent, absolved him from the performance of the contract, and the most he would be entitled to would be a reduction from the contract price, .of the value of the labor in replacing and filling in that amount of earth. The non-suit, so far as moved for on this ground, was properly refused.

The second ground is almost too trivial to notice. The well in question was situate within the .area to be excavated. In the course of the excavation some earth fell into it. This did not destroy the well. All that was necessary to do was to clean it out. The defendant swears it would cost $100 to clean it out; while the plaintiff swears the *257cost would be but $5. Thus stands the evidence. It was proper to submit the question to the jury, for if the expense would be but $5, the plaintiff is not to be deprived of all compensation for his labor by reason of a non-performance in this respect.

The third ground is one of more difficulty. If the word “manufactured,” as used in the contract, means “ dressed ” there has clearly not been a substantial performance of the contract, and the plaintiff cannot recover, unless the deviation from the contract was by consent of the defendant. If, on the other hand, the word “ manufactured ” means simply that the stones were to be broken into such sizes and shapes, and sledged to such a degree of smoothness as to be ready tó be dressed by the masons, then there is sufficient evidence to call for a submission to the jury of the question of fact as to the performance of the contract in this respect.

There is no proof as to the meaning of the word “ manufactured,” except such as can be gathered from the acts of the parties and the attendant circumstances. The phrase “ manufactured ready for the masons,” by itself, conveys no meaning to my mind. What is he to do ? Is he to cut them into squares, or oblongs, or hexagons ? Is he, with a stone chisel and mallet, to smooth the stones equal to the face of those composing the front of an elegant mansion; if so, how many sides is he to dress smooth ? It may have a technical meaning; but if so, it is to be regretted that none of the witnesses have informed us what it is.

It is suggested that the word is equivalent to “ dressed.” I see no reason for adopting the suggestion. On the contrary, there are some circumstances which indicate that it was used to designate something different from dressing. Dressing is a' term well understood by all masons and architects. The contract in question was prepared by an architect; if he had designed that the stones should be dressed by the .plaintiff he would surely have used the tech-*258meal word so well understood, and not have substituted for it some other expression.

The architect was a witness on the trial, and when asked “Did the plaintiff-manufacture the stones ready to put in the walls ?” he says, “ He blasted the stones, but he did not dress them for the walls; he merely broke them out and laid them there.” If he understood by the term “ manufacturing stones for a wall,” dressing them, why should he be so guarded and non-committal in his answer, leaving it in uncertainty whether what the plaintiff did do was manufacturing or not; especially when to a previous question if “ Mr. Tone did not dress them,” he answered promptly and directly, “Ho sir.”

The masons who were sworn on behalf of the defendant, are equally ambiguous and non-committal, on this súbject. The witness Wiesnér, when asked “were they manufactured so that you could use them?” replied, “We were put in a great deal of bother with them ; ” and being further asked “ What did you have to do with them, before using them?” he said, “We had to make them smaller, and dress them.”

The witness Dresser (a mason) being asked whether the stones, when put in his hands, were in a suitable condition, and if not, why not ? answers, “ Some of them were too heavy, and he did not manufacture them the right way.” Being further asked “ In what respect were the stones not properly prepared?” he answers, “He must work them so that a man can handle them and put them in the wall.”

Michael Dunn, a witness for the plaintiff, gives some testimony which satisfactorily solves the problem. The question was put to him. “ They say here it was not properly dressed and they had to have it properly dressed?” He answers : “I understood we were to do nothing but sledge the stone in a proper way for the masons to dress and to put it in the wall.”

Taking the testimony of these' three witnesses together, it is apparent to me that there are two operations to be per*259formed on a stone before it is ready to be placed in a wall. First, the stone is to be sledged into a proper size and to a suitable degree of smoothness to prepare it to be dressed by masons with the appropriate implements, and second, it has to be dressed by the masons, with their tools. The first of these operations may be termed “ manufacturing,” using that word simply in the sense of “preparing.” This, I have no doubt, is the meaning of the word, as used in the contract in question. The testimony of the plaintiff that for thirty years he had been engaged in blasting out and furnishing stone for building, and that he always pursued the same course as in this case, taken in connection with the absence of any reason for pursuing a different course in this case, tends strongly to confirm my view of the meaning of the word “manufacture” in this contract.

I am aware that the plaintiff swears *“*I did not manufacture these stones; I blasted them.” This is clearly an error. The burthen of the testimony shows that he did more than simply blast, viz. that he had them sledged, so as to properly prepare them for the masons. The plaintiff then, being under no obligation to dress the stones, his failure to do so does not affect his right of recovery.

On the question whether he properly sledged the stones, so as to prepare them to be dressed by the masons, there was conflicting testimony, and therefore that question was properly left to the jury.

I have not overlooked the fact, that the plaintiff says that the stones were not fit to turn the arch with; but he also says that it was no fault of his ; that he prepared the stone as well as it could possibly be done ; and that the fault was in the material itself. As the defendant furnished the material, he alone- must bear the consequence of its being defective.

Judgment affirmed, with costs.