#### Albert D. Bishop, plaintiff and respondent, *vs.*James L. Jackson *et al.*defendants and appellants.

1. Where part of the work to he delivered by the defendants to the plaintiff, under a sealed contract between them, consisted of iron legs for a proposed derrick, and the plaintiff had agreed by such contract to furnish a machine to bend such legs into shape, which was essential to the complete performance by the defendants, of the work therein undertaken hy them, within the time specified; *Held*that its delivery was a condition precedent to such performance.

2. *Held, also,*that a subsequent waiver by the defendants of the furnishing of that machine by the plaintiff, by entering into a new verbal contract, whereby they agreed to furnish such machine themselves, the plaintiff drawing plans for, and superintending its construction, completely changed the nature of the written contract between the parties.

3. The plaintiff having, in such a case, superintended the construction of the machine, and drawn patterns and plans for it, while its construction went on in the workshop and foundry of the defendants, without objection, until it was finally finished, long after a period specified in the written contract for its completion had expired; *Held*that this was evidence of a waiver by both parties of the completion of the work within that time.

4. The plaintiff having agreed, by an instrument in writing under seal, to make the legs of a derrick, which was part of the work undertaken, hy a contract made eight months previously, to be done'by the defendants, who were to furnish iron plates for the purpose; *Held*that this rendered the time of making such legs wholly independent of any time for the completion of such work fixed by the first contract, and therefore only due diligence was required.

6. Subsequently, the plaintiff converted iron plates, furnished by the defendants, by means of such bending machine, into legs for the derrick, attached them thereto, and accepted and used other parts of the work made by the defendants pursuant to the first contract. *Held*that the original contract must be considered as being abandoned, except as regarded the work to be done, and the prices to be paid for it. The making of the legs of the derrick, unmanufactured iron plates for which were to be furnished by the defendants, but *288which were to he shaped by the plaintiff, was thereby taken out of the first contract.

6. *Meld, also,*that under such circumstances neither party could complain of the non-completion of the bending machine in time; the plaintiff having superintended its construction, and accepted and used it when finished, and the defendants furnishing a workshop and workmen for the purpose, without' making any objection.

7. So, too, in regard to the iron plates actually furnished by the defendants, the plaintiff having accepted and made use of them; *Held*that he thereby waived any objection as to time.

8. Where questions of fact, upon which there is conflicting evidence, are submitted to the jury and passed upon by them, their verdict should not be disturbed.

(Before Monell, Garvin and Jones, JJ.)

Heard May —, 1868;

decided May 30, 1868.

This action was brought to recover damages for three breaches of contract by the defendant, to wit: Failing to deliver, pursuant to a contract with the plaintiff, the iron parts of a boom derrick agreed by him to be erected for the United States government; also iron plates to be made into the legs of such derrick, pursuant to. a second contract between the parties; also a machine to bend such plates for such derrick, pursuant to a third contract between the same parties; as well as for the value of the plaintiff’s services in preparing drawings and plans, and superintending work for the defendants.

By an agreement under seal, dated in August, 1862, which recited the plaintiff’s contract before mentioned with the government of the United States, the defendants agreed to furnish the plaintiff, with all the wrought and cast iron work called for in the specifications and plans of such derrick, excepting the machinery, and deliver it at the Brooklyn Eavy Yard within .four months; the setting up of the work not being included. And the plaintiff agreed thereby to pay the defendants a certain sum (9 cents) per pound for the wrought iron work, and a certain other sum (3 cents) per pound for the cast iron work, in four equal installments, during the progress of the work, on the same condition as to time as the plaintiff’s contract with the government. He *289also agreed thereby to furnish to the defendants a rolling machine for bending the iron plates to form the legs of such derrick, as mentioned in the specifications, to remain, however, his property. He also agreed to give the defendants a power of attorney to collect as much of the money payable to him from the- government of the United States, as it became due, as would meet the payments due to him. The former was to be $20,000, payable in four equal installments.

In September following, (1862,) about two or three weeks after making such contract under seal, the parties made a new contract orally, whereby the defendants dispensed with the furnishing of the bending machine mentioned in the former contract, and the plaintiff agreed to employ them to construct one for him, they furnishing the materials, and he superintending the work and furnishing the detailed plans and drawings. He forthwith proceeded to prepare such plans and drawings, and superintended the work at the foundry of the defendants, where he had the entire control of their workmen. Such machine was completed about the first of April, 1863. On the 17th of that month, the parties entered into a third new written agreement, whereby the plaintiff agreed to make the iron legs of the derrick required by the contract of August, 1862, (eighty in number,) in three pieces, to be fastened together by rivets, do all the workmanship thereon, deliver them at the Brooklyn Havy Yard, assume all the responsibility of such iron legs corresponding to the requisition of the contract of August, 1862, and fill out the third certificate of payment by the government of the United States to the defendants. The latter stipulated by the same agreement to furnish the iron ' and rivets for such legs, and pay for them when made, at a certain rate per pound, (three cents,) also to furnish different specified numbers of plates of different specified dimensions, whereof a certain number were to be delivered in a certain time (sixteen days.) They also agreed to sell the bending machine, at a fair estimate, to the plaintiff, to pay *290pver to him $1000 out of his second United States certificate of indebtedness, and also to pay him for his work, after he had completed a certain number (sixteen) of such legs, and to furnish the rest of the iron plates as fast as the plaintiff might want them, to erect.

Such bending machine was delivered to the plaintiff about the first of May, and with it he formed all the legs of the derrick. The defendants did not furnish iron plates for the legs of the derrick, except for sixteen of them, and those were not furnished of the requisite size until about fifty days after the April contract was made. The plaintiff finished the legs from such plates in sixty days after the plates were delivered, but seven were insufficient for the purpose intended. The defendants failed to furnish much of the wrought and cast iron parts of such derrick, consisting of plates for the residue of its legs, suspensions of the boom rods; lateral boom rods, cast iron couplings, diagonal rods and rivets, and the plaintiff was compelled to procure the iron material and have it made into the requisite forms, at a higher price than that fixed in the contract. Some of the parts furnished by the defendants were also defective, and the plaintiff was compelled to bestow work on them to repair tne defects. The plaintiff finally completed, erected and put together, the derrick and delivered it to the government, under his contract with them, in July, 1863. The government furnished part of the iron and did part of the work to complete it, on which account they refused to pay the plaintiff the last installment.

The plaintiff’s causes of action are set out in the complaint in three statements. The *first*for non-delivery by the defendants of the parts of the derrick required by the contract of August, 1862, and of the iron plates for the legs of the derrick required by the- contract of April, 1863. *Second.*For not constructing the bending machine provided for by the oral contract in September, 1862, and *Thirdly.*For the value of detail drawings and other drawings gnd specifications for work. The answer of the defend*291ants denies every allegation of the complaint, except as therein admitted. It alleges the performance by the defendants of all their covenants in the' contract under seal of August, 1862, except where prevented by the plaintiff, and that such prevention arose from four causes: *First.*His failure to furnish the bending machine therein mentioned. *Second.*A like failure to make the drawings and plans agreed to be furnished by him for the work therein mentioned. *Third.*Wrong and incompetent directions to the defendants’workmen; and *Lastly.*By revoking his authority to the defendants to receive his pay from the navy department. The defendants also aver in such answer that they fulfilled all the conditions required of them by the contract of September, 1862, for building a bending machine, and that the plaintiff superintended and directed the construction of such machine at his own risk and trouble.

A counter-claim was set up in such answer by way of defense, for four causes of action. *First.*The failure of the plaintiff to provide the bending machine and drawings for carrying out the contract of August, 1862. *Second.*The revocation by the plaintiff of his power of attorney to the defendants to receive his pay from the navy department, being the first two installments. *Third.*Work and labor, under such contracts;" and *Fourth.*The failure of the plaintiff to supply the defendants with the certificates mentioned in the contract of April, 1863, and his obtaining the money himself.

The action was tried at a special term, before Justice Garvin and a jury. A verdict was rendered in favor of the plaintiff, and the defendants moved for a new trial. The following opinion was delivered, on deciding that motion.

Robertson, Ch. J.

It is necessary, preliminarily in this case, to ascertain and determine the precise state in which the relation and obligations of the parties to this action to each other stood in May, 1863, after the plaintiff had accepted the iron plate bending machine made by the defend*292ants, at their foundry and by their workmen, under his directions, pursuant to their mutual oral agreement Sf September previous. ' Part of the work to be delivered by the defendants under the sealed contract of August, *1862,*was iron legs for the proposed derrick. A machine to bend them into shape, to be furnished by the plaintiff according to such agreement, was essential to the complete performance by the defendants of the work therein undertaken by them, within the time therein' specified, and its .delivery was therefore a condition precedent to such performance. The subsequent waiver by the defendants of the furnishing of that machine by the plaintiff by entering into a new contract, orally, in September, 1862, whereby they agreed to furnish such machine themselves, the plaintiff drawing plans for and superintending its construction, evidently to be employed in forming the legs for the proposed derrick, completely changed the nature of the contract between the parties. There is no evidence in the case, except from the written agreement of April, 1863, at whose cost such machine was to be. The plaintiff went on superintending the construction of such machine, and drawing patterns and plans for it, and the defendants had it in progress in their foundry until it was finished, in April, 1863, which was long after the four months of the first contract had expired. This was evidence of a waiver by both parties of the completion of the work within that time. But still further, the plaintiff* agreed by the instrument of April, 1863, himself to do part of the work undertaken by the defendants by that of August, 1862, which was to make the legs of the derrick, the latter merely furnishing iron plates for the purpose. This put the time of making them entirely under the plaintiff’s control, and effectually interfered with any fixed time for the completion of such work, which therefore was to be done with due diligence. Subsequently the plaintiff took some of the iron plates furnished by the defendants, converted them by the bending machine into legs for the derrick, attached them thereto, and accept- *293. ed and used other parts of the work made by the defendants pursuant to the contract of August, 1862.

The original contract must, therefore, be considered as having been entirely abandoned in May, 1863, except so far as regarded the work to be done, and the prices to be paid for it, and in reference to so much of the former, as related to the legs of the derrick, unmanufactured iron plates were to be furnished by the defendants, but shaped into such legs by the plaintiff, instead of by themselves, thus taking them out of the former contract. There is, therefore, of course, no room for complaint by either party, as to the non-completion of the bending machine in time, the plaintiff having superintended its construction, and accepted and used it, when it was finished, and the defendants furnishing a workshop and workmen. So, too, in regard to the iron plates, actually furnished by the defendants, the plaintiff accepted and made use of them, and thereby waived any objection as to time, although, in consequence of the delays of the defendants, he refused to- receive any more.

The only serious claims of the plaintiff in this case, therefore, are for services in the defendants’ employment; for damages in being obliged to procure elsewhere the materials and parts of his derrick which the defendants neglected to furnish, and for bad workmanship in some of that which ■ they furnished, and the expense of rectifying it, and for injury by their delay in furnishing it in a reasonable time. There was no evidence in the case of any injury by the delay, as the government completed and accepted the derrick, and only withheld the last payment, because it had furnished part of the iron and caused part of the work to be done, which was to be deducted from the last installment.

The articles omitted to be supplied by the defendants were, iron plates for the derrick legs, boom rod suspensions, lateral boom rods, cast iron couplings and patterns for them, and'diagonal rods and rivets. The iron plates furnished by the plaintiff instead of those so omitted, weighed 30,000 pounds, for which he paid from five and a half to *294nine cents per pound, and was only to pay, by the contract . of August, 1862, when converted into legs, nine cents per pound, from which was to be deducted the allowance of three cents to him for such conversion by the contract of April, 1863, making a difference of about one cent per pound of loss, or $300 in all. The lateral boom rods omitted weighed 1400 pounds, costing thirty cents a pound, on which there was a loss of twenty-one cents a pound, in all $291. The suspension boom rods omitted weighed 13,965 pounds, costing ten cents a pound, being a difference of one cent, and making a loss of $139.65. The cast iron couplings and patterns for them cost $85, whereas the cost, under the contract, would have been only $7.50, making a loss of $77.50. On the diagonal rods, weighing 2912 pounds, there was a difference and loss of about sixteen cents on each pound, or $465.92 in all.' The rivets cost twenty cents a pound for 60,000 pounds, making a loss of eleven cents per pound, and a difference of $660. All of such losses amount, together, to about $2475. Erom these is- to be deducted the value of the bending machine furnished by the defendants, being $830 Leaving a residue of over $1100.

The value of this claim of the plaintiff for extra work, caused by the insufficient work furnished'by the defendants, was from $3000 to $4000; whether this was a fair test of the inferior value of the articles furnished to that of those agreed for, is quite immaterial, as no exceptions were taken on the trial to any refusals to charge, and the jury were, therefore, at liberty to take that into consideration.

The plaintiff testified that the defendants agreed to pay him for his services in making drawings and superintending the work, and the jury passed upon that question. He also testified that such services were worth from $4000 to $5000 a year, and he was engaged eight months, being from $2700 to over $3300. The jury, therefore, might under the evidence, have brought in a verdict of nearly $9000 as damages for all the losses. of the plaintiff, whereas they only found $6000 damages. They must also be considered as *295having passed upon the question of the plaintiff’s refusal to receive more plates after a delay of three months.

*E. W. Dodge,*for the appellants, defendants.

*J. Townshend,*for the respondent, plaintiff*.

I see no reason for interfering with the verdict. The new trial asked for must be refused, -with costs.

An order refusing a new trial was accordingly entered; from which the defendants appealed to the general term.

By the Court, Jones, J.

In this case it is not necessary to add much to the opinion delivered at special term, which I approve of.

A few observations may, however; be proper. The defendant claims that the plaintiff should not be allowed compensation .for services in superintending and furnishing plans, because under the contract he was to perform those services without charge.

Whether these services were covered by any contract, so that he was bound to perform them without compensation, was a question of fact for the jury. They have found in the negative, on conflicting evidence, and there is no reason for interfering with their' verdict.

Again, the defendants say that the plaintiff should recover no damages arising out of the unskillful performance of the work by the defendants’ workmen, because he gave directions and furnished the plans for the work, and superintended it, and, therefore, if the work was not properly done it was his own fault. And for the same reason it is claimed that if the work is improperly done the plaintiff is not entitled to compensation for giving directions, drawing plans and superintending, even if a valid contract to give a compensation therefor had been made. This depends on the solution of four questions.

Was the doing of the work improperly, the result of erro- • neous directions and plans given by the plaintiff? Or was *296it the duty of the plaintiff, under the agreement under which • he claims compensation, to see that at every step the workmen followed his orders and plans, and performed the work properly, and used proper materials? Or was it confined simply to keeping such supervision over the work as to be • ready when his previous directions and plans had been carried out, apparently with proper workmanship and materials, then to give further directions and plans for future prosecution of the work ? ■ Or did the damage complained of result from improper workmanship, or the use of improper materials in any portion of the work that was superintended by the plaintiff?

If the 1st, 2d and 4th of these questions, or any one of them, be affirmatively answered, then the defendants’ proposition is correct; if they are all answered negatively, and the 3d is answered afiirmatively, then it is wrong.

These four questions were questions of fact for the jury. The claims of the defendants upon the subjects covered by them, it appears from the portion of the charge contained in the appeal papers, were presented in general terms to the jfiry. There is conflicting evidence on them, and the jury have answered the 1st, 2d and 4th, negatively, and the 3d affirmatively. Their verdict should not be disturbed.

Again, the defendants say that the plaintiff broke the contract on his part by not making payments as agreed. The evidence does not support this. The agreement was to make Jackson & Brother, the attorneys of the plaintiff, to make collections from the government so far as the payments became due under the contract.

Whatever difficulty'may have existed as to the second payment, it was waived by the parties.

The third payment was not countermanded until after the plaintiff had refused to continue the contract, which refusal the jury have decided to be justified.

Judgment affirmed, with costs.