text:
    John T. Howard, Surviving Partner of J. Howard & Son, Plaintiff, v. William R., and Elizabeth T. Holbrook, Executors, &c., of Darius B. Holbrook, deceased, Defendants.
    1. The words “for value received,” in a contract, sufficiently express the consideration within the requirement of the statute of frauds.
    2. Where the contract sufficiently expresses the consideration on its face, a new trial will not be granted for error in admitting evidence of the actual consideration in support of the validity of the contract.
    3. In proving a tender, under an agreement by defendant’s testator, that he would purchase a bond if offered to him. on a specified day, the witness testified that on that day he presented it at' testator’s place of business, he not being there and being represented to be out of town, that at a subsequent day the witness called there, and found a person who answered to the name, and acknowledged the agreement to be his, but said he could not redeem the bond, and who, on being told that the witness had been there twi^ before, said that he had been out of town. There was no evidence that the testator was not out of town, or that he was out of town and within the State. Edd, that the testimony was prima facie sufficient to excuse a personal tender on the day, and was sufficient to go to the Jury on the question of identity. Robertson, J., dissented.
    (Before Bosworth, Ch. J., Moncrief and Robertson, J. J.)
    Heard, February 13, 1862;
    decided, March 29, 1862.
    This was an action for the price agreed to be paid by • the defendants’ testator to the plaintiff and his deceased partner, for a bond of the Newfoundland Electric Telegraph Company, under an agreement in the following words:

      “For value received, I hereby guarantee to Messrs. J. Howard & So’n, that the bond of the Newfoundland Electric Telegraph Company, No. 17, for two hundred pounds sterling, shall be of the value of nine hundred and sixty dollars on the seventh day of March, 1855, at which price, and at which date, I will purchase the same, if offered to me. •
    “March 8th, 1853.
    “D. B. Holbrook.”
    The complaint set forth the partnership of the plaintiff and John'Howard, deceased, under the firm of J. Howard & Son, and that Darius B. Holbrook, the defendant’s testator signed the agreement in question. It further alleged that on the 7th of March, 1855, the bond therein mentioned was not of the value of 960 dollars, or of any value, and that on or about that day, it was offered to him, and he refused to purchase the same; that the plaintiff had offered such bond to the defendant, and demanded payment of the sum of 960 dollars, which they refused. The plaintiff demanded judgment for $960, and interest. The defendants’ answer was a general denial. The material portions of the evidence are stated in the opinion. The cause was tried on November 19th, 1861, before Chief Justice Bosworth, and a Jury, who found a verdict for the plaintiff. And the- Court directed the defendants’ exceptions to be heard in the first instance at General Term.

      Alexander W. Bradford, for defendants, submitted the following points.
    I. The action cannot be maintained on any construction that can be given to the contract.
    1. The ■ agreement to purchase is merely executory of the guaranty, and the guaranty is void, because it does not sufficiently express a consideration. (3 R. S., 5th ed., 221; Hall v. Farmer, 5 Denio, 484.)
    2. Admitting that the words value received, express a sufficient consideration, (Brewster v. Silence, 4 Selden, 207,) there is no proof in the case of the happening of the contingency, which would fix the liability of the guarantor. The' only authorities to be found in support of the proposition that the words, “value received,” express sufficient consideration are cases on promissory notes which have been overruled. (Draper v. Snow, 20 N. Y. R., 331.)
    II. If the instrument be not a guaranty, it is not valid and binding as a contract for the repurchase of the bond therein mentioned, because •
    I. It was then a contract for the sale of a thing in action, for a price exceeding fifty dollars, and no note or •memorandum in writing was signed by the parties to be charged thereby, and it is not pretended, that any part of the purchase-money was paid by the buyer.
    2. If it be a valid contract for the repurchase of the bond in question, it was nevertheless subject to the condition therein contained, viz., that the value of the bond in the market, was less than the sum of nine hundred and sixty dollars. There is no proof in the case on this point; and the plaintiff should have shown it affirmatively and positively, to entitle him to retain the judgment.
    III. If the instrument be not a guaranty, or a contract for sale or repurchase, it is then a wager and the defendants are clearly not liable. „
    IV. The testimony of Norris, as to the consideration of the instrument, is inadmissible. (Hall v. Farmer, supra.)
    V. There is no sufficient proof of a demand on D. B. Holbrook. The testimony is but vague and uncertain.

      Lewis L. Delafield, for plaintiff, argued the following points:
    1. This agreement is to be regarded as a contract of purchase and sale.
    1.. There are two distinct parts to the agreement, on either of which the plaintiff might maintain an action.
    2. The plaintiff has elected to treat this as an agreement of purchase and sale.
    3. It was therefore unnecessary that he should offer any proof of the value of the bond on the 7th of March, 1855.

      II. If, however, this agreement is to be construed a guaranty, the words, “ for value received,” are a sufficient expression of the consideration. (2 R. S., 317, § 2,4th ed.; opinion of Judge Comstock, in Church v. Brown, 21 N. Y. R., 332; and see pp. 316, 321; Watson v. McLaren, 19 Wend., 563; Douglass v. Howland, 24 Id., 40; Staats v. Howlett, 4 Denio, 563; Prosser v. Luqueer, 4 Hill, 423; Brewster v. Silence, 4 Seld., 215; Cooper v. Dedrick, 22 Barb., 517; Miller v. Cook, 23 N. Y. R., 495.)
    III. A consideration being expressed in the agreement, the introduction of testimony showing the real consideration was, either proper, or, if improper, was immaterial. (Code, § 176; Edmonston v. McLoud, 16 N. Y. R., 545.)
    IV. The presentation of the bond and agreement at Hr. Holbrook’s office, on the 7th of March, he being absent from the city, and the subsequent presentation and offer of the bond to him within a reasonable time after he returned to town, were an ample compliance with the condition contained in the agreement.
    1. He who prevents a thing being done, shall not avail ' himself of the non-performance he has occasioned. (Fleming v. Gilbert, 3 Johns., 531.)
    Eo party can insist upon a condition precedent, when its non-performance has been caused by himself. Such non-performance cannot prevent the accruing of a right, or its enforcement by action. (The Mayor v. Butler, 1 Barb., 326; Smith v. Gugerty, 4 Id., 621; The People v. Bartlett, 3 Hill, 570; The People v. Manning, 8 Cow., 297.)
   Bosworth, Ch. J.

The instrument of March 8th, 1853, signed by the'testator, is, on its face, a valid contract. As an original undertaking or agreement, this point is free from difficulty. As an agreement within the statute of frauds, it is good on its face, according to the recent case of Miller v. Cook, (23 N. Y., 495.)

The admission of the deposition ©f Eorris, is not an error requiring a new trial. If the agreement on its face, expressed sufficiently a consideration that made it obligatory, proof of the actual consideration could not possibly prejudice the defendants.

The charge of the Judge is not given. It should be presumed to have related to the only question of fact that could be properly submitted, viz., whether the witness Keeler, actually presented the bond (Ho. 17) to the testator, and he refused to redeem, it, stating that“ he had not got the money,” &e., &c. The witness is quite confident that he presented it on the 7th of March, 1855, at the testator’s place of business, he mot being there, and being-represented to be out of town. That he subsequently called and found there a person who answered to the name, who acknowledged the guaranty to be his, but said he could not redeem it»- and who, on being- told that the witness had been there twice before, said that he had been out of to„wn.

If the evidence was insufficient to be submitted to a Jury, a new trial should be granted, as the Court refused to dismiss the complaint, and the defendants excepted.

It may be that a tender to the testator personally, was indispensable, even though he was out of town, if within the State. (Smith v. Smith, 2 Hill, 351; Watson v. Hetherington, 1 Car. & Kir., 36.)

But as the testator did not refuse to pay, on the ground that no tender had been made to him personally on the 7th of March, and as he admitted he had been out of town, and did not suggest that he had not, nevertheless, been out of the State, I think the evidence is, prima facie, sufficient to show that his absence was conceded to be such as made a tender to him personally, excusable.

There was no attempt by the defendants to prove that he was not out of town, or was within the State.

Evidence that on the two or three occasions, when the witness first called at the testator’s place of business he was told the testator was out of town and that there was no one there to represent him, and that subsequently he found there a person answering to the name, who said -he was the man, and admitted the contract to be his, but refused to pay the money, is competent to go to a Jury upon the question of his identity, and sufficient to uphold a verdict, in the absence of all evidence tending to raise any suspicion of mistake or collusion. (Roden v. Ryde, 4 Ad. & Ellis N. S., 626; Murieta v. Wolfhagen, 2 C. & K., 744; Hunt v. Maybee, 3 Seld., 270, 271; Hatcher v. Rocheleau, 18 N. Y. R., 86, 92, 96.)

The fact asserted by the witness, that he called at Mr. Holbrook’s place of business, was not attempted to be discredited, by any cross-examination of the witness, or other evidence tending, or apparently designed to throw any doubt upon its accuracy. Under such circumstances, and in the absence of all evidence tending to excite a suspicion that the witness did not see Mr. Holbrook, but on the contrary saw and conversed with some other person, I think the evidence sufficient to warrant the inference „that he saw Mr. Holbrook, and had with him the conversation testified to. I think, therefore, that the judgment should be affirmed.

Moncrief, J., concurred in this opinion.

Robertson, J., (dissenting.)

There are two stipulations contained in the brief instrument which forms the subject of this action, as I read it: the first is an undertaking that a certain chose in action shall be worth a certain sum of money, on a certain day, and the second is an agreement to buy it at that price, on that day, if offered to the party signing it; on the first, the plaintiff’s firm would have been entitled to recover only the difference between the market value and the stipulated value; on the second, the plaintiff’s firm could only recover the stipulated price, after a tender of the bond sold, to the purchaser.

The plaintiff is probably right in claiming, that the use of the words “ value received ” and the terms of the contract would be sufficient to constitute “an expression of the consideration,” within the meaning of the statute to prevent perjuries, (2 R. S., 317, §2, 4th ed.,) under the decisions in this State. (Watson v. McLaren, 19 Wend., 563 ; Douglass v. Howland, 24 Id., 40; Staats v. Howlitt, 4 Denio, 563; Prosser v. Luqueer, 4 Hill, 423; Brewster v. Silence, 4 Seld., 215 ; Looker v. Dedrick, 22 Barb., 517; Church v. Brown, 21 N. Y. R., 316, 321, 332; Miller v. Cook, 23 N. Y. R., 495.) But the stipulation for indemnity hardly brings it within the statute, as it is not a guaranty for the payment of the bond, but for its market value, like that of any other commodity. At the same time, I do not perceive that the contract to purchase the bond in question, contained in the instrument in question, was subject to any condition as to its being worth less than the price named. The agreement gave the plaintiff’s firm the option of either to sue upon the contract of indemnity for the difference between the named and the market price, or for the whole specified price on a tender of the bond.

There was no evidence given of the value of the bond, so that the plaintiff could not recover damages upon the contract of indemnity, except those which were merely nominal.' If the action be for the price of the bond, a difficulty may arise from want of proof of a tender to Mr. Holbrook on the 7th of March, the time fixed in the contract. The application on that day was only at his office, (if it were his;) the subsequent tender made to some person, in the same place, calling himself by his name, is subject to considerable question as to the identity of the person. It was made, in a place supposed td be his office, where he had a desk, to some one calling himself by his name. This is hardly enough on the question of identity; as to which its efficacy must rest on the facts of its being the office of the defendants’ intestate, and this declaration of the person as to his name.

In regard to the question, whose office it was, it is very plain, that as the witness did not know Mr. Holbrook personally, he could not legally know the place to be so, or his place of resort or business, unless he knew it to be so, by repute or hearsay, neither of which would be legal evidence of the fact, on a question of the identity of a person in it

The declaration of the person applied to, as to his reputed name would clearly "be no evidence against the defendants, unless it be assumed in advance, that such person was the defendants’ testator, which begs the question. Mor would a single declaration to that effect amount to evidence that the name was the reputed one of the party assuming’ it; such a fact can only be proved by repute among those familiar with the person.

It is true, that proof that a person, really cf the same name with the party sued, executed a contract, is prima fade evidence that they are the same, in reference to a contract sued upon; but similarity of names has never been held to be evidence of identity in any other transaction necessary to establish a liability. It was held in the English Oourt of Exchequer, by all the Judges, (Bayley and Vaughan, B.B., and Ld. Lyndhurst, Ch. B.,) in the case of Whitelock v. Musgrave, (1 Cr. & Mees., 511,) that although proof of the handwriting of a subscribing witness was evidence of an execution of an instrument by some one, of the name mentioned in it, further evidence was necessary of the identity of such person with the defendant. The same views had been previously expressed by one of the same Judges, in Nelson v. Whittal, (1 Barn. & Ald., 21.) In a subsequent case of Roden v. Ryde, (4 Q. B., [Ad. & E.,] 626,) Ld. Denman attempted to answer the argument of the hardship of imposing upon the defendant the necessity of proving a negative, by considering the danger of suing the wrong person, and suggesting that the evidence could be easily baffled by introducing the defendant and asking if he were the person. Both these answers would be easily disposed of in this case; the real defendant is dead, no one therefore knows how to prove an alibi, and there is no danger except of paying costs on serving a summons on the wrong person.

The necessity of some proof of identity in persons living in large cities has. been fully recognized in Hubback on Successions, (pp. 103, 464, 465,) and in regard to a register of persons’ names in other cases. (Birt v. Barlow, 1 Doug., 171; Bain v. Mason, 1 C. & P., 202, n.; Wedgwood’s Case, 8 Greenl., 75.) In Buller’s Nisi Prius, (1716,) it was held, that a man’s calling himself by a particular name was not sufficient evidence of his being so. In Jones v. Jones, (9 M. & W., 75,) all presumption of identity was repelled by proof that several persons of the same name lived in the same place. No case is to be found where a person’s calling himself by a particular name on one occasion was held evidence of his being a defendant of the same name; if such were the law, it might often be found extremely difficult in a large city to prove the negative.

The two separate facts, therefore, of the ownership of the office, and the reputed name of the person, not being proved, the combination is not of much advantage. Proof that a person called himself by a particular name, in an-office, by common report belonging to a person of the same name, will not establish the identity of such person with the defendant.

It would be a dangerous relaxation of the rules of evidence to allow the temporary assumption of a name to be evidence that the person assuming it bore the name and was the defendant; although it was made in his reputed office. Annals of criminal jurisprudence- are filled with frauds committed by such means ;: no person of ordinary prudence would pay a large sum of money upon such-evidence of identity.

Besides this, the demand and refusal was not explicitly applicable to the $960 mentioned in the contract. The-demand was for the money in the bond and the refusal-, was to redeem it; possibly, however, the Jury were at liberty to infer it referred’ to- the- price of the article;

Mr. Holbrook’s absence- from town was no excuse for not presenting the bond- on the proper day, if he was within the State. (Watson v. Hetherington, 1 Car. & Kir., 36; Smith v. Smith, 2 Hill, 351.) There was no evidence that he left town to avoid a tender, or that he resorted to any artifice to prevent it. The plaintiff’s firm accepted the contract in its present general form, and therefore took the risk of finding the defendant on the day fixed. There was, therefore, no absolute hindrance of the performance by the defendants’ testator. Whether there was a waiver of performance in dne time, will remain to be determined, after the identity of the party refusing it on a subsequent day, shall be established by proper evidence, on a new trial.

Evidence was also admitted to show the actual consideration for the agreement in question: this was unnecessary, if the rule of law be as already stated, that the consideration must be expressed on the face of the instrument; and as an exception was taken to its admission, whatever may be its immateriality, such exception furnishes sufficient ground for a new trial.

For these reasons there should be a new trial in this case and the judgment reversed, the costs to abide the event.

Judgment for the plaintiff.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J.

license: Public Domain

text:
    James L. Cheeseman, Plaintiff and Appellant, v. James H. Sturges et al., Defendants and Respondents.
    1. S., one of the defendants, held real and personal property in trust, to be used for the joint benefit of himself and the plaintiff, and a third person, in specified proportions, as copartners in a joint enterprise, and under an agreement that he was to make advances for carrying out the enterprise, and that all stocks or other securities than cash, which should be received, should remain undivided until a final settlement, and that he would not dispose of the property (other than money) without the consent of the others. He accordingly made large advances, and subsequently sold and conveyed all the property without the consent of the plaintiff, and received therefor stock of an incorporated company.

      Held, that the plaintiff, by bringing an action, with full knowledge of these facts, in which he demanded a transfer of his share of the stock, and obtained an injunction against any disposal of it, pending the action, must be deemed, for the purposes of this suit, to have made his election of this remedy, and must be treated as if he had consented to the sale.
    2. Hence the proper relief in such action is that the plaintiff should pay his proportion of the advances and have a transfer of his share of the stock, and in default of his paying, that his share of the stock should be cold, and that he should pay the deficiency, if any.
    3. The plaintiff is not entitled to a judgment that the whole stock be sold to pay the advances, and that the residue of the proceeds, or the deficiency, if any, be apportioned The defendant may be allowed to retain Ms share of the stock, on being charged with his part of the, advances.
    4. After the commencement of this action, but before the trial, the corporation, the stock of which was in controversy, increased its capital stock, without, however, altering the nominal value of a share; and subsequently certificates of stock of the new issue were deposited in Court to await the result of the action.

      Held, that if the plaintiff desired to make any claim against the defendant, based on Ms individual acts, in effecting such alteration in the stock, pending the action, he should have modified his pleadings accordingly. But by going to trial he must be deemed to pursue the stock as it existed after such increase.
    (Before Bosworth, Ch. and Moncrief and Robertson, J. J.)
    Heard, February 13, 1862;
    decided, March 29, 1862.
    Appeal by the plaintiff from a judgment entered after a second trial, before Mr. Justice Hoffman, at a Special Term, on the 9th of March, 1861.
    This action was brought against James H. Sturges, Andrew Thorp and Thomas S. Thorp, who were partners in a joint enterprise. The details of the facts briefly stated in the head note, fully appear in the report of a former decision, in 6 Bosw., 520, and in the opinion of the Court stated below.
    Upon the second trial it was adjudged that the plaintiff was indebted to the defendant Sturges, in the sum of $25,271An), and it was further adjudged that the defendants held as security therefor, l,866f shares of stock in the Hew York Ice Company, to which plaintiff should be entitled, on payment of his indebtedness, and interest, within sixty days, and that if plaintiff failed to pay, the shares should be sold by a Referee, and the indebtedness be paid out of the proceeds, rendering the residue to the plaintiff, or, if there should be a deficiency, that the defend-. ant, Sturges, should have judgment and execution against him therefor.

      James W. Gerard, for plaintiff, (appellant.)
    I. The Justice found, as a matter of fact, that Cheese-man was not a party to the sale made by the defendant, Sturges, to the Hew York Ice Company, nor to the investment by Sturges in 6,000 shares of the capital stock of the Hew York Ice Company, and did not consent to it after-wards.
    The Judge erred in deciding, that the plaintiff having elected to look to the stock of the Hew York Ice Company for his indemnity, with knowledge of the actual capital being $350,000, and having availed himself of the remedy, by injunction, to prevent its transfer, and secure it for his demands, was precluded from any relief in the shape of a judgment for money, on the case he makes in his complaint.
    II. The Justice should have given judgment in favor of Cheeseman, against defendants, for the cash balance, on the sale of the property by Sturges for $140,000; and to satisfy that judgment he should have ordered sold by a Referee, the stock on file, and as much more as was necessary for that purpose. Sturges is to be considered as a trustee violating his trust, one condition of which was, that he would not sell without the consent of Cheeseman. Another reason why Cheeseman should have a judgment for cash is, because the defendants destroyed the original capital of the Hew York Ice Company without the knowledge or consent of Cheeseman, and in violation of the injunction.
    The plaintiff in his complaint claimed that he was entitled to have the balance paid to him in cash, but as Sturges was insolvent, that he had a right to have enough of the stock sold to pay his judgment in full, even if the sale of the whole stock was necessary for that purpose.
    The Justice should have given a judgment in favor of the plaintiff, for the balance found in his favor, in cash, with an equitable lien and power to sell any amount of stock necessary to pay that balance. (2 Story’s Equity Jurisprudence, §§ 1265, 1232,1257,1258, 1259; Hovenden on Frauds, 468, 470, 471; Wallace v. Duffield, 2 Serg. & R., 521, 529; Lewis v. Maddocks, 17 Vesey, Jr., 47, 57; 16 U, S. Dig., 626, citing 9 Texas, 482; Willis on Trustees, 64.
    III. If not a money judgment, Cheeseman was entitled to a judgment for one-third of the number of shares of stock at par, (6,000 shares,) remaining after allowing so many shares to Sturges at par as was necessary to pay the money advanced by Sturges to carry out the enterprise.
    Sturges should be compelled, upon every principle of equity, to take the stock at par for his advances, as Oheeseman is compelled to take it at par for his balance, and the Thorps not being Iona fide purchasers of the stock for present value without notice, they stand on the same footing with Sturges, and no higher.
    IV. At all events, and under all circumstances, if the Court sustains all the doings of the defendants, the Justice erred in his judgment in ordering to be sold only 1,867 shares of this last stock, which he awarded to Oheeseman, at par, for one-third of the shares of the stock received by Sturges, instead of ordering all the stock to be sold and reduced to cash, paying Sturges his advances, and giving to Oheeseman his one-third of the balance. The J udge has considered this a case of copartnership, and by the law of partnership, on a dissolution and winding up of the concern, all the assets are to be sold and reduced to cash, and the cash divided among the partners as the balance due to and by them respectively may appear by their respective accounts. (2 Hoffman Ch. Pr., 131; 4 Sandf., 311.)
    V. There could be no judgment against Oheeseman for money, in any event. Sturges and Braisted were to furnish all the money, as a condition of their beiug allowed to participate in the enterprise, and they were to look to the proceeds resulting from that enterprise alone for reimbursement. Therefore the judgment, to this extent, should have been, that Sturges be paid his advances out of,the stock, first, either by taking the stock at par, or selling as much as was necessary to pay all his advances, and to divide the balance of the money or the stock among them, (Oheeseman, £,) and if the stock was sold and did not produce enough to pay Sturges his advances, he could have no judgment against Oheeseman for a third of the deficiency. If Oheeseman gets nothing, he is not to be a loser by the enterprise.

      John N. Whiting, for defendants, (respondents.)
    I. The amount found due by the plaintiff to the defendants is upon a computation favorable to the plaintiff.
    II. Oheeseman was a party to the exchange for the stock of the New York Ice Company, and such exchange is to be considered his own act. We contend that the facts show that he concurred in it, and that he ratified it.
    III. The only judgment which plaintiff might have claimed, was for a transfer to himself of one-third of the ' stock of the New York' Ice Company, held by the defendants as the proceeds of the property of the joint enterprise, yiz.: one-third of $140,000 of said stock, upon the payment by said plaintiff of one-third of the charge against it.
    IV. Any judgment which would apply the stock in the hands of the defendants as if it were money, to the satisfaction of the charges against it, and impose upon the plaintiff an equality of condition with the defendants, in the residue only, would be manifestly erroneous.
    1. The charges constituted a money debt, binding the plaintiff personally, and a burden upon the property.
    2. If the property had remained of its original character, the requirement from the creditor partner, or from the trustees holding a claim upon the property, to take his pay in the property at any assumed, or even at any proved valuation, would have been clearly erroneous.
    3. If the exchange had been made by Sturges, without Cheeseman’s procuration, the plaintiff had his election of remedies against Sturges, either,
    (a.) To charge him for a wrongful conversion, or
    (6.) As a simple contract debtor upon a breach of trust, or

      (c.) To adopt the transaction as his own contract, recognize Sturges as his agent in its accomplishment, and follow the proceeds, for his share of the same.
    He has elected the last named by the form of his action and the prayer of his complaint.
    Having made such election, the whole transaction of Sturges, as matter of law, must be treated as a contract voluntarily entered into by Oheeseman, and all charges and suggestions as to wrongdoing must be lost sight of and dropped. (2 Story’s Eq. Jur., §§ 1262,1263,1285,1286; Murray v. Lylburn, 2 Johns. Ch. R., 442; Murray v. Ballou,, 1 Id., 581; Pocock v. Reddington, 5 Ves. R., 800; Long v. Stewart, Id., note; Harrison v. Harrison, 2 Atk. R., 122; Vernon v. Vawdry, 2 Id., 119; Collyer on Partnership, § 182; Story on Agency, §§ 439, 214.)
    The right to adopt the transaction as his own, if availed of, must be relied upon entirely, and the party is not entitled in addition to any of the usual claims and remedies against a wrongdoer. (Murray v. Lylburn, 2 Johns. Ch. R., 442.)
    4. Any division or distinction between the stock to the amount of the debt, and the surplus over and above that amount, requiring the defendants to account for so much of the stock held by them as is nominally equivalent to the debt, as money, and as to the residue requiring them to account for the plaintiff’s proportion of stock only in kind, would be supported by no reason or principle. •
    V. The interest of Cheeseman in the stock being encumbered by a lien, the judgment, as far as he had a right to pray for one, could be for the delivery of nothing. There is no pretense that he ever made tender of his share of the advances. He could, at any time, have arranged to sell his stock (one-third), and tendered the purchase-money, if equal to one-third of the advances, and he would have obtained his stock.
    No action thereupon was necessary on his part, as he had his rights, at all times, without the assistance of the Court.
    The only judgment which could be properly granted in the cause would be on application of the defendants, and for a foreclosure of their lien, and a sale of the stock to repay the same.
   By the Court—Bosworth, Ch. J.

When this cause was before .the general term on an appeal from the judgment entered on the report of a Referee, the Court held that the claims of the plaintiff must be adjusted either upon the principle, first, that the plaintiff has ratified the sale to the Hew York Ice Company, or second, that he entirely repudiates that sale. (6 Bosw., 520, 531.)

Waiving, for the present, the question, whether the plaintiff must be deemed to have made an election between these principles, by which he is concluded in this action, what are his rights, when tested solely by contracts to which he is a party ?

The agreement of the 21st of August, 1855, between Cheeseman, Braisted & Sturges, by the covenant contained in it “that all stock or other securities than cash, provided for in said contracts, as part of the consideration for the performance thereof, shall remain undivided until a final settlement,” imports that, by “ said contracts,” Cheese-man, and Cheeseman and Christie, were to be paid by the People’s Ice Company, partly in money and partly in stocks. That agreement also imports, that the money, which it was contemplated the People’s Ice Company would pay in performance of the said contracts entered into with them, would be applied to refund “ all moneys advanced ” by either of the three, in the performance of that agreement.

The declaration of trust, (as it is called) viz.: the covenant by Sturges of the 25th of September, 1855, shows that it was not intended, by conveying the property to which the agreement of the 21st of August, 1855, relates, to modify the rights or interests of either of these three parties in such property, or their relations to it, as between themselves; Sturges covenanted therein, to hold said real estate and premises, in trust for the three jointly; not to convey or encumber it except for the purpose of said contracts, and then only with the consent and approbation of Cheeseman & Braisted.

Looking at all the provisions of the agreement of the 21st of August, 1855, in connection with the covenant of Braisted & Sturges to pay, furnish and supply “ all the necessary money and means to fully carry on and perform said contracts,” and in connection also with the declaration of trust of September 25, 1855, I think it was the understanding of these three parties, that when the contracts with the People’s Ice Company were performed, and the latter had made the payments which they had stipulated to make, the money received from them would be applied by Sturges to reimburse moneys advanced, and that either of them would then have a right to call for a final settlement. Sturges was precluded by his covenant from disposing of anything, other than money, which he might receive, until a final settlement was had between them. In this view, if the contracts had been performed, and the People’s Ice Company had paid the stipulated price, and if the money received by Sturges was insufficient to pay his advances, then any balance, payable either by Braisted or Cheeseman, it would be his right to demand, on transferring to him his aliquot part of “ all stocks or other securities than cash” which should then “remain undivided.”

Whether, in the event that Cheeseman refused or was unable to pay his aliquot part of the unsatisfied balance of the advancements, Sturges could recover it by action at law, or would be compelled to bring an action for an account, and take a judgment for a sale of the undivided stock and other securities owned in common, and payment out of the proceeds, and if still a deficiency, a judgment against Cheeseman for his proportion of it, may be quite material, in one aspect of the case, in determining whether the judgment appealed from-is erroneous.

If the latter was his only remedy, then the judgment is erroneous, even on the principle that the plaintiff ratified the sale to the Hew York Ice Company.

If the plaintiff has ratified that sale, then his interests and rights, in and to the property mentioned in the declaration of trust of the 25th of September, 1855, have become vested in and attach to 5,600 shares of the stock of that company, amounting to $140,000. The property held by Sturges in trust, was transferred for stock of the company, amounting to $140,000.

The Court, at Special Term, has found that Oheeseman did not assent to a transfer, except upon the terms that the stock of the Hew York Ice Company should be $430,000, and that $215,000 of such stock, or half of the whole stock, should be obtained for the joint property. The capital of that company was fixed at $350,000, and only $140,-000 of the stock was paid for this property, being $35,000 less than half of the whole stock. And it is not found, as a fact, that Oheeseman ratified this sale. On the contrary, as I construe the statement of facts found, the Court finds that, as a matter of fact, Oheeseman did not ratify the sale that was made.

The Judge held, as matter of law, (first,) that this action, by reason of the claim made in it, the form of the complaint, and the character of orders obtained in it at the plaintiff's instance, and other proceedings had therein, precludes the plaintiff from obtaining any relief in the shape of a judgment for money, in this suit.

And, (third,) that although the capital stock of the Hew York Ice Company has been changed pending this suit, by an increase of the capital from $350,000 to $500,000, so that the plaintiff cannot in any event, or upon any terms, obtain any part of the stock, precisely as it existed when this suit was commenced, yet as the plaintiff has proceeded to trial with full knowledge of the change in such capital, he is to be deemed to have elected to look to and seek his indemnity, out of the new and substituted stock, and “is entitled to resort to no other property or fund, or personal liability.”

The conveyance of the property to the Hew York Ice Company, by Sturges, and what Consideration he received for it, were known to the plaintiff before this suit was commenced. The facts, are stated in the complaint, and the relief prayed is a judgment against Sturges that he account concerning the moneys paid to him prior to such conveyance, and the stock received by him as the consideration of such conveyance, and that the defendants pay over and transfer to the plaintiff his just and equitable share of the said moneys and stock.

The plaintiff prosecuted the action, in this aspect and on this basis, to judgment. And he obtained a judgment, in substance and effect, that Sturges, after retaining enough of the stock, at its par value, to satisfy his advances, should transfer to the plaintiff his proportion of the residue of the stock, viz.: 754 shares, and pay the dividends that had been received thereon. (6 Bosw., 526.)

With this judgment the plaintiff was satisfied. The defendant appealed from it to the General Term: the judgment was reversed, and the Oourt, in the opinion delivered, states, as its conclusions, that the plaintiff had elected his relief, and was concluded by his election, and that he could not have more than his proportion of the stock, on paying his due proportion of the advances. (6 Bosw., 532, 533.)

In Orme v. Broughton, (10 Bing., 533,) Tindal, C. J., says, that “ after bringing an action in which the grievance alleged is the loss sustained by breach of the contract, I think it would be impossible to bring a second action, or to resort to any other means to enforce the contract, inasmuch as the first action is to be deemed an election as to the remedy sought.”

In the case before us, the plaintiff, by his complaint, sought his proportion of the stock for which the property had been conveyed to the Hew York Ice Company, and pursued the claim for relief of that character, to judgment.

In Gardner v. Ogden et al., (22 N. Y. R., 327,) it was held that the clerk of a broker, employed to sell land, having access to the correspondence between his principal and the vendor, stands in such a relation of confidence to the latter, that, if he becomes the purchaser, he is chargeable as trustee for the vendor, and must reconvey or account for the value of the land.

The vendor having brought a suit against both the broker and his clerk, making a claim against the broker for having fraudulently sold the land, and against the clerk for a reconveyance or accounting, the Court said, (Id., p. 340,) “ In the present case, the plaintiff has elected to regard Smith (the purchaser) as his trustee, and his complaint, as to him, and the decree of the Special Term, proceeds on this basis. The plaintiff, therefore, elects to affirm the sale made to Smith. He cannot, uno flatu, affirm it as to him, and disaffirm it, as to Ogden.” * * “ The affirmance of the sale by the plaintiff, is a complete answer to the claim for damages against the firm for fraud in making the sale." (Id., 341.)

In Sanger v. Wood, (3 Johns. Ch. R., 416,) Chancellor Kent says: (p. 422,) “ Any decisive act of the party, with knowledge of his rights and of the fact, determines his election in the case of conflicting and inconsistent remedies. . * * * And I consider the going to trial in the action at law ” (the fraud having been discovered a few days before the trial) “ and especially the entry of judgment afterwards upon the verdict, as a decided confirmation of the settlement in April, 1816.”

Evans v. Inglehart, (6 Gill. & J., 188,) affirms the same doctrine.

Ho more decided conduct in regard to electing between remedies open to a plaintiff, can be had, than exists in this case. With a full knowledge of the alleged wrong, and in a complaint stating it, judgment is prayed for the plaintiff’s share of the stock into which the trust property had been converted. An injunction was sought and obtained restraining the transfer of it. And a portion of it has been' retained within the control of the Court, pending this litigation, to satisfy any claim the plaintiff might establish.

It is settled law, that a party prosecuting two suits at the same time, upon the same cause of action, seeking in the one relief inconsistent with that sought in the other, will be compelled- to elect which remedy he will pursue. And in the present case, the plaintiff has made his election and is concluded by it, for all the purposes of this suit, and of any relief that can be granted in it.

He must be treated, therefore, precisely as if the conveyance to the Hew York Ice Company had been made with his assent, and upon terms authorized by him.

In this aspect of his rights and liabilities, the property in which he and Sturges were interested had been converted into stock, and no money could be realized from it to pay the advances made by Sturges, except by a sale of the stock.

The agreement of the 21st of August, 1855, between Oheeseman, Braisted & Sturges, provides “ that all stocks or other securities than cash, provided for in said contracts as part of the consideration for the performance thereof, shall remain undivided between them until a final settlement, and that neither of said parties shall sell or dispose of his interest in said contracts, or any of the proceeds other than money, without the consent in writing of the others.”

I think it was the intent and understanding of the parties, that after the contracts had been executed and payment had been received, there should be a final settlement between the parties to ascertain how much was due to either for advances made, with a view to a division of what might remain after satisfying such advances.

The said agreement of the 21st of August, 1855, also provides, “ that upon the performance and completion of the same (the said contracts), after refunding all moneys expended in the performance thereof, to the parties advancing and furnishing and providing it, and all costs, charges and expenses paid or incurred in the performance of said contracts, to divide and apportion the balance between them equally, share and share alike.”

This agreement indicates very clearly that Oheeseman was not to make any pecuniary advances, pending the executing of the contracts, and that the advances to be made by the-other parties were to be satisfied out of the money and stocks and other securities to be received for performing the contracts, and only the balance then remaining was to be divided between the parties.

The plaintiff insists that injustice has been done to him by the decision that he should pay his just proportion of the advances by a day named, and that in default thereof his third of the stock should be sold to satisfy that sum, or so much of it as may be necessary for that purpose, and that in case of a deficiency he should pay such deficiency. He further insists that enough of the whole stock should be sold to satisfy the entire advances, and that the residue, if any, should be divided, and in case it did not sell for enough to pay the entire advances, the plaintiff should be charged with only his proportion of the deficiency.

I am not satisfied that this claim is well founded.

The Judge found a balance, due to Sturges for advances, of,................................... $79,058 75

If the stock would sell for 50 cents on the dollar, it would produce,................ 70,000 00

And leave a deficiency of,................ $9,058 75

One third of which is,..................... 3,019 58

The latter sum would be-amount of the plaintiff’s loss, and double that the amount of Sturges’ loss, as he has succeeded to Braisted’s rights and liabilities.

Oheeseman’s proportion of the $79,058.75 is $26,352 .92 His third of the stock, viz. $46,666.66, at 50 ' per cent would produce,................. 23,333 33

And his loss would be,.................... $3,019 59

' Hence it follows,.that whether the whole stock be ordered to be sold to pay the entire advances, or only one-third of it to pay one-third of the advances, the result is precisely the same to the plaintiff, provided it may reasonably be expected that, it can be sold at the same rate per cent, in- each case.

And I know of no principle on which- it is just to assume that it will- sell at a. higher rate per cent on a sale of stock amounting at its par value to $140,000, than on a sale amounting, at its part value to only $46,666fin,.

I am, therefore, of the opinion, that there is nothing inequitable in that part of the judgment now under consideration ; and if there is not, there can be no reason why Sturges should not be allowed to retain his share of the stock, on being charged with his part of the advances. The plaintiff cannot, in judgment of law, be benefited by compelling him to submit to a sale of it to work out the equities of the parties, and Sturges should, therefore, be left to his chances of realizing more by holding his stock, than from a sale of it in presentí. If permitted to retain Ms proportion, he also incurs the risk of a greater loss, but I am inclined to think that the plaintiff has no rights, which permit him to require a sale of the whole, in presentí.

If these views are correct, then the only qliestion left, regards the effect of the increase of the capital of the H. Y. Ice Company, pendente lite.

The increase of capital from $350,000 to $500,000, was determined upon by the corporation, on the 27th of January, 1857. This action was commenced on the 14th of that month; the plaintiff knew that the capital had been increased, as early as January 8,1858. An order in this action was made as early as January 7,1858, modifying the injunction orders previously granted, on a deposit of the stock of the H. Y. Ice Company with the Clerk of the Court, amounting to $25,000; and on the 8th, certificates of 1,000 shares were so deposited, and these certificates were upon the increased capital of 500,000.

The trial, resulting in the present judgment, was had in March, 1861. If the plaintiff proposed to make any claim, based on the individual action of the defendant Sturges in effecting such increase of capital, he should have moved to adapt his pleadings to it, and have caused them to be so amended as to present the questions he designed to raise. Instead' of doing that, he goes to trial, knowing of the increase of the capital, and must be deemed to have continued to pursue the stock in the company, as it existed after such increase of its capital. (Sanger v. Wood, supra(.

This branch of the case may be viewed in another aspect. Supposing the property to have been conveyed to the M.' Y. Ice Company, with the knowledge and assent of. the plaintiff for $140,000 of its stock, (the capital being then $350,000,) and this suit to have been brought to recover the plaintiff’s proportion of such stock; the pendency of such a suit would not affect the capacity or right of the company to increase its capital, pendente lite; nor would the fact of such, an increase affect the rights and liabilities of the parties to the suit, inter se, in respect to the stock forming the. subject matter of such litigation. The par value of the shares continues unaltered, and the nominal increase of the capital is supposed and purports to be represented by a corresponding increase of actual capital.

And the plaintiff, in the case supposed,, would receive, by the judgment of the Court, his portion of $140,000 of stock as it existed, at the time judgment was pronounced. He would obtain the same number of shares, and of the same par value, and in judgment of law of the same actual value, as if the capital had not been increased. .

The plaintiff, having elected to affirm the sale made to the Mew York Ice Company, occupies the same position as if he had been a party to such sale and had procured it. ' The result of these views is, that he cannot make the fact, that the Mew York Ice Company has increased its capital during this litigation, the basis of a claim to charge the : defendant, in damages, for the cash value of the $140,000 of stocks, as it existed before or at the time of the increase of the capital.

It is not the case of a fraudulent or wrongful conversion, ■by a defendant, pendente lite, of trust property, which a suit is instituted and seeks to reach, and to. which, at the commencement of the. suit, the plaintiff was entitled.

The conversion, or change in the character of the stock, ■is one of form rather than of substance, and that change has been made by the corporation, and not by the defendants.

This appeal has been argued by the co.unsel of the appellant on the basis, and on a preliminary statement made by Mm to the Court, that he should assume the facts to be correctly found; and insist that on the facts found the judgment was erroneous. Considering only these questions, and no others were discussed, I tMnk there is no error in the judgment, and that it should be affirmed.

The other Justices concurring in the opinion, judgment o'f affirmance was ordered.


author: Moncrief J. Robertson, J. Bosworth, Ch. J.

text:
    James Stewart et al., Plaintiffs and Respondents, v. William A. Keteltas, Defendant and Appellant.
    1. Where a person employs different parties by distinct contracts, to do, respectively, the carpenter work and the mason work of a building, neither contractor being a party to the other’s contract, and the contract of one not referring to that of the other, and the work being such that the performance of the carpenter work is necessary to enable the mason to perform his work, if; by a delay on the part of the former the latter is prevented from making strict performance within the contract time, he does not thereby become liable to the employer as for a breach of his contract, nor forfeit his right to recover for what he has done.
    2. In such a case, where the masons brought their action to recover for the work, and the defense was that they had not completed it by the first of February, which was the time fixed by the contract:
    ■Held, that there was no error in charging the Jury that if there was a delay or interruption of the work of erecting the building, resulting from, the omission of the carpenters to do what was essential to enable the plaintiffs to proceed with their work, and if such delay was such as to. throw the completion of the work over the first of February, then-the plaintiffs would be entitled to recover, being prevented from, completing their contract in time, by the act of the defendant or his carpenters. Held, further, that upon the evidence in this case the Jury were warranted, in finding that the plaintiffs were prevented by the- carpenters from completing the work in time. (Robertson, J. dissented.).
    3. After a written contract for the construction of a building had'been made, it was ascertained by the parties that certain work, would be necessary, which, at the time of making the contract, was not anticipated, and the question which arose between them, as towho was to bear the expense of it, was settled by the employer agreeing to pay the contractors a specified - sum for doing it, and relying on this promise they did it. Held, that he was not afterwards at liberty to insist that the written contract required! them to do it at their own expense.

      4. Under a provision m a contract to do the mason work of a building, that payment is to be made “ when all the works are completely finished, and certified by the architect to that effect,” a certificate that the contractors “ have completed the mason work to your building " is sufficient.
    (Before Bosworth, Ch. J., Moncrief and Robertson, J. J.)
    Heard, February 7, 1862;
    decided, March 29, 1862.
    The plaintiffs in this action, James Stewart and John S. Howell, who were in partnership as builders, sued the defendant upon a contract which they had made with him in writing and under seal, by the terms of which .the plaintiffs engaged, “ on or before the first day of February, 1860, well and sufficiently to erect and finish the new building to be situated upon lot 88 Leonard street, in the aforesaid City of Hew York, agreeably to the drawings and specification made by Griffith Thomas, architect, and signed by the parties hereunto annexed, within the time aforesaid, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the said architect, to be testified by a writing or certificate under the hand of the said architect, and also, shall and will find and provide such good, proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient for completing and finishing all the masons’, bricklayers’, plasterers’ and other works of the said building, mentioned in the masons’ specification, for the sum of eleven thousand four hundred dollars.”
    On .the defendant’s part it was stipulated that he should pay this sum in installments, at various stages of the work, and should pay the last installment, viz., “ 3,000 dollars when all the works are completely finished and certified by the architect to that effect. Provided that in each of the said cases a certificate be obtained and signed by the said architect.”
    The specifications annexed and referred to were entitled, “ specifications for mason’s work to be performed in building, erecting and finishing a five story store,” &c., &c.
    During the progress of the work the plaintiffs obtained from the architect his certificate as to the various installments, the terms of which were, “ This is to certify that Messrs. Stewart & Howell are entitled to receive the sum of twelve thousand dollars, on account, for mason work done to your building in Leonard street, agreeable to their contract.”
    The last certificate which they obtained, on completing the work, was in these words, “This is to certify that Messrs Stewart & Howell have completed the mason work to your building in Leonard street.”
    The defendant refused to pay the last installment; and this action being brought to recover the same, together with several items for extra work, the defendant in his answer denied that plaintiffs had performed the contract, and denied that they had obtained a certificate as required by the contract, and also denied the claim for the extra work; and he further alleged that by reason of plaintiffs’ non-performance of the contract he had been delayed in the use of the building, and claimed to recoup or set off his damages therefor.
    The plaintiffs in their reply alleged that the work was “substantially erected and finished and completed on or before the first day of February, 1860, and that it would have been entirely completed and finished on or before that date, but for the acts of the defendant and of the carpenters employed by him in the erection of such buildings, by which all the delay on the part of the plaintiffs to complete and finish at that date was caused and occasioned, and that such delay was not the neglect or fault of the plaintiffs.”
    The cause was tried before Chief Justice Bosworth and a Jury, on the 7th of June, 1861, and the plaintiffs recovered a verdict. Judgment having been entered the defendant now appealed therefrom, and also from an order of Mr. Justice Hoffman refusing to grant a new trial, which the defendant had previously applied for.

      C. Bainbridge Smith, for defendant, appellant.
    L The verdict is against evidence. There was no dispute upon the fact as to the amount of damages the defendant sustained in consequence of the plaintiffs not fulfilling their contract, and the Jury had no right to disregard them.
    • II. The several exceptions to the admission of the plaintiff Stewart’s testimony, it is submitted, are well taken.
    III. According to the contract on which the plaintiffs base their right to a recovery in this action, the defendant agrees to pay the plaintiffs a certain amount of money upon the condition of their strictly performing the covenants and agreements on their part. ; One of the covenants requires the plaintiffs to erect a certain building agreeably to the drawings and specifications made by the architect, within the time mentioned, in a good- and workmanlike and substantial manner, to the satisfaction and under the direction of the architect, to be testified by a writing or certificate from him. The requirements of the certificate are distinctly specified, and its production and delivery to the. defendant is a condition jwecedent to the payment of any moneys under the contract. (Butler v. Tucker, 24 Wend., 447; Smith v. Briggs, 3 Denio, 73; Smith v. Brady, 17 N. Y. R., 173; Bonesteel v. The Mayor, 22 N. Y. R.,. 164; Bloodgood v. Ingoldsby, 1 Hilt., 388; Milner v. Field, 1 Eng. L. and Eq. R., 531; Glenn v. Leith, 22 Id., 489 ; Grafton v. The Eastern Co. R. Co., Id., 557.)
    1. A condition precedent must.be strictly performed to ■ entitle a party to recover. (Cases above cited; Pike v. Butler, 4 Comst., 360; Oakley v. Morton, 1 Kern., 25; Mounsey v. Drake, 10 Johns., 27.)
    2. The certificate given is insufficient, and unlike any of those previously given. He had given for the other installments, certificates acceptable to the defendant,, and the last one was more important than all the .others; and there is no reason or excuse shown, either by the pleadings or proof, why, the defendant was not furnished with the requisite or usual certificate for the last payment.. The question is not whether the work was completed or not. The certificate is a condition precedent to any right to the payment claimed, or to an. action for its recovery, and the covenant requires a strict performance of what the plaintiffs had engaged to do. (Smith v. Briggs, 3 Denio, 73, and cases above cited.)

      J. M. Van Cott, for plaintiffs, respondents.
    I. The contract having been fully performed (though after the stipulated time) with the defendant’s assent, the delay was immaterial, except as to the question of damages under the counterclaim. The plaintiffs’ right of action for the $3,000 installment and for the extra work, was, therefore, perfect. (Smith v. Brady, 17 N. Y. R., 174, 189, 190; Mead v. Degolyer, 16 Wend., 634, 636, 638, 639; Dubois v. Del. & H. R. R. Co., 4 Id., 285; Jewell v. Schroeppel, 4 Cowen, 564; Linningdale v. Livingston, 10 Johns., 36; Raymond v. Bearnard, 12 Id., 274; Jennings v. Camp, 13 Id., 94, 97; Wolfe Exr. v. Howes, 20 N. Y. R., 197; Cunningham v. Jones, Id., 486, 489; Champlin v. Rowley, 2 Parsons on Contr., 39, 40; Add. on Contr., 197, 198, 763 (ed. of 1847); Champlin v. Rowley, 18 Wend., 191.)
    II. The plaintiffs are entitled to recover for the extra sheath-piling.
    1. Though within the verbiage of the contract, the acts of the parties show that it was not within the plan and specifications which qualify and restrict the mere words.
    2. The defendant had misled the plaintiffs by an unintentional misstatement of the facts respecting the improvement of the adjoining premises. The plaintiffs had the right to stop until the error was corrected, and such right was a good consideration for the express contract to pay $200 for the extra sheath-piling.
    The consent to delay the excavation with a view to the adjoining improvements — such delay being at the request and for the benefit of the defendant — was also a good consideration for the express promise. (Young v. Hunter, 2 Sold., 203.)
    3. And the defendant was bound by the architect’s construction, under the fifth clause of contract, making this work extra.

      III. The delay to complete by the 1st of February, was occasioned by defendant and his servants, and disentitled defendant to claim performance at the stipulated time.
    ' Any act of the defendant delaying the plaintiff's in the completion of the work ipso facto waived the condition as to time. Thenceforth, the only obligation of the plaintiffs was to .complete their work within a reasonable time. (Young v. Hunter, 2 Seld., 203; Smith v. Trowsdale, 77 Eng. Com. L., 83.)
    IV. New trials are not awarded for the recovery of nominal damages. (McConihe v. N. Y. & E. R. R. Co., 20 N. Y. R., 495.)
    In any view of the case, the defendant did not lay a foundation to recover more than nominal damages.
    Y. The judgment should be affirmed. (See also Thornhill v. Neats, 98 Eng. Com. L. R., 831; Holme v. Guppy, 3 Mees. & W., 387; Carpenter v. Blandford, 8 B. & Cr., (15 Eng. Com. L., 575.)
   Moncrief J.

The verdict of the Jury is conclusive, unless clearly against the weight of evidence. I confess my inability, in any case proper to be submitted to a Jury to determine between conflicting statements made at a trial, to perceive the propriety of reviewing the finding, upon the ground that the twelve Jurors arrived at a conclusion not warranted by the evidence. If the evidence is so preponderating in favor of. either party that the Jury would err in not finding in his favor, it might be the duty of the Court so to instruct them,—most certainly it is the privilege of the court to so comment upon the evidence as matter of opinion. To submit a question in dispute to a Jury to settle which party is correct in the statements made, and yet practically to hold the rule of law to be that if they find other than one way the verdict will be set aside, I cannot regard as correct.

In the present case there was a conflict of . testimony as to the cause of the delay; whether occasioned by the defendant or the plaintiff. The Jury found in favor of the plaintiff, and I am not disposed to differ from their finding; there is abundant evidence to support it. (1 E. D. Smith, 85, 89.)

The exceptions taken to the testimony of the plaintiff Stewart had reference to conversations with the defendant, and tended to establish a material issue between the parties ; the certificate provided for in the contract to be given by Mr. Thomas, the architect, was not to be conclusive upon the defendant. While a certificate was a condition precedent to the right of the plaintiff to demand payment, it by no means precluded the defendant from claiming or showing that the work had not been done or was imperfectly or improperly done.

The contract provides that $3,000 dollars shall be paid by the defendant, “when all the works are completely finished and certified by the architect to that effect.” It is not disputed that the works were all completely finished at the time Mr. Thomas, the architect, gave the certificate in question. The architect certified that the plaintiffs “ have completed ” the mason work. The contract of the plaintiffs was for the mason’s work.

If the certificate given by the architect did not, in very terms, follow the words of the contract between the parties, it contained the substance thereof; and it should be borne in mind that this certificate is prepared and delivered by the agent of the defendant; it is not unjust to say that if the criticism of his counsel upon this certificate could be considered as well founded, the architect would have declined to give a certificate. A certificate insufficient in form, or defective in something that the contract calls for, is such an omission or inadvertence as should be indulgently regarded. (Comstock, J., 17 N. Y. R., 173.) If it was imperfect the error originated with the agent of the defendant; it could have been returned to the plaintiffs, with the nature of the objection pointed out; if received without objection, or received without stating that the refusal to pay was upon the ground of some specified defect, it must be held to conform to and answer the requirement of the contract; the defendant could waive defects, if any there were in the certificate. (2 Greenl. on Ev., § 394; 20 Pick., 389.) There was evidence tending to show that he made no objection to the certificate. The objection to payment was put upon the ground of damages sustained by non-performance at the time fixed by the contract. By the terms of the contract it is provided that “ should any dispute arise between the parties, respecting the construction or meaning of the drawings and specifications, the same shall be decided by Griffith Thomas, architect, and his decision shall be final and conclusive.” A dispute did arise concerning the “ sheath-piling,” and the defendant referred the plaintiff to Mr. Thomas, promising to pay $200 therefor if he should so determine. Mr. Thomas decided that the work was extra, beyond the contract, and that the defendant should pay.

The charge of the Judge fairly submitted the whole case to the Jury, and containing no misstatements of the rules of law, the evidence supporting the verdict, and none of the exceptions being well taken, the judgment and the order denying the motion for a new trial, should be affirmed.

Robertson, J.

The contract, in this case, was under seal and inter partes; the only parties to it were the plaintiffs and defendant. By it, the plaintiffs covenanted that they would, on or before the 1st of February, after it was executed, “ erect and finish a new building * * upon “ lot 88, Leonard street, * * agreeably to drawings and “ specifications made by Griffith Thomas, architect,” signed by the parties and thereto annexed, “in a good, workman- “ like and substantial manner, to the satisfaction of such “ architect,” and would “ find and provide such good, proper and sufficient materials of all lands whatsoever, as should he proper and sufficient for completing and furnishing all the masons, hricldayers, plasterers and other worlcs of the “ said building, mentioned in the mason’s specifications.” The defendant only covenanted by it to pay the specified price, by installments, as the work advanced.

There were also some other stipulations in such contract, to the effect that all work exhibited on either the drawings or specifications, should be done without extra charge; that the plaintiffs should provide all the materials, labor, scaffolding, implements, moulds, models and cartage. Provision was also made in it for compensation for extra work, the decision of any controversy by the architect, and saving the defendant from responsibility for loss or damage to the works or materials.

The specifications annexed to such contract provide for furnishing materials and doing work on various parts of the building, including excavations, removal of rubbish, filling up, mortar, sheath-piling, shoring, base courses, cement, vaults, cesspools, work of brick, brown stone, blue stone, marble, granite and iron, flagging, shutters and railings of iron, and plastering; no mention is made therein of any wood work, except that the first and second floors are required to be elevated from front to rear a certain height, the foundations to be leveled to the height of the cellar floors, enough strong iron anchors are required to be provided for floor and roof-beams, as directed, and cellar floors are to be deafened.

There is not a word in the whole contract or specifications tending to show that any wood work was necessary to be done to enable the plaintiffs to complete the building or the mason, iron, and plastering work, as they undertook it. Ho testimony in the case establishes that the work undertaken by the plaintiffs could not have been done without the aid of any carpenters’ work; and although not having knowledge enough judicially, or otherwise, of the art of building houses, to pronounce positively whether it could or not, from the contract and specifications I should be rather inclined to think it could.

The plaintiffs’ work was not completed within the designated time, and notice was given to him by the defendant that he held him responsible for his neglect. Damages for the delay are claimed in the answer, and the plaintiffs in their reply set up a proximate and substantial completion of the work by the time fixed, and that the delay was caused by the acts of the defendant and the carpenters employed by him in erecting such building.

The only testimony in regard to delay was that of one of the plaintiffs, the mason, blacksmith and plasterer, in their employ, and the architect; the first claimed a delay of five or six weeks by a refusal or neglect of the defendant to sheath-pile an adjacent lot, which, by the terms of the contract they were bound to do, and for which the defendant ultimately agreed to .pay; also a further delay of a week or ten days by the failure of the carpenters employed by the defendant to put on part of a tier of beams, as the wall for supporting the ground floor was completed. He testified that “ the mason work was finished “ about the 20th of November, there was some little to do “ with the plastering after that; it became very cold “ weather in the month of December and the plastering “ was interrupted by it.” He then proceeded to explain such interruption by stating “ that, from that time there was “no mason.work to do of any consequence. * * About “ the 1st of January the plastering was finished, all that “ could he finished, with the exception of some which was “ to be done in the vault which was altered after the first “ of January,—some little plastering which could not ham “been done previous to that.” The only work which he could specify as remaining to be done after the 1st of February was a dumbwaiter and platform, which were delayed by the alteration in the vault until the 20th of February, after which nothing was done except stopping leaks, and he stated that the work was' substantially finished at that last day. He did not venture to claim the delay in the plastering as being due to any neglect of the carpenter or even to assert under oath that he could not have completed the work by the day fixed, notwithstanding the delays; his mason, however, charged more boldly the delay in the plastering upon the carpenters; he testified that “ it was necessary to have the stairs up before he “ completed the plaster work and likewise the windows in “ at that time of the year: the stairs were not up nor the “ windows in; we got the brown coat on on the 21st of “ November; we were delayed with the other work till the “ 16th of December.” He, however, further stated that “ patching and repairing is a necessary part of the work; “the carpenters, gasmen and plumbers are very likely to “ break a part of the wall; * * we were delayed in the “ cold weather on account of the windows not being in; “ if they had been in, the cold would have been kept out.” He does not venture to state that the delay caused by the carpenters rendered it impossible for the plaintiffs to complete the work by the day fixed in the contract, and his idea of the word “ necessary ” seemed to be that the carpenters’ work, being put on after plastering, would break it, and that the want of windows made the mortar freeze. His employer does not seem to have attributed the same consequences to the same cause of delay. A blacksmith employed by the plaintiffs testified that he was interrupted in his work, by want of being furnished with the dimensions of inside iron shutters by the carpenters. The architect, however, testified that he could have got his proportions from what was done, and further testified that the carpenters’ work, on which the masons’ work depended, was not, and could not be finished before the 1st of February “because there were some parts of the iron and “ plaster work that had to be done at that time in connec- “ tion with the carpenters’ work, but not a particle of iron “ work, which depended upon carpenters’ work.” A plasterer testified that he got through with the necessary patching about the beginning of February. Other evidence in the case established that the building was not surrendered to, and taken possession of by the defendants as complete, and the architect’s certificate given, until the end of March.

No witness pronounced the completion of the plaintiffs’ contract in time, an impossibility, notwithstanding all the delays, and the only inference, to be fairly drawn from the testimony, was, that a little extra exertion, or a few more hands, would have enabled the plaintiffs to have finished their labors by the 1st of February, as. all that remained was patching the plastering, particularly, as they do not seem to have proceeded with indefatigable diligence in completing the work to be done by them, having delayed the carpenters on their work.

The question, therefore, arises whether, unless the delays produced by other workmen rendered it impossible for the plaintiffs to complete their work in time, they are excused for not doing so. In Holmes v. Guppy, (3 Mees. & W., 387,) it was admitted on the trial that the delay in giving possession rendered it impossible to completé the contract in time, and the decision was put on that ground. In Thornhill v. Neats, (8 Com. Bench N. S., 831,) it was pleaded that the doing of additional work was so mixed" up with the contract work, and formed part and parcel thereof, as to render it impossible to complete the work within the time. Williams, J., doubted if the pleading was good in equity, for not averring that the rest of the work was done in time, and Keating, J., held that the subsequent agreement prevented performance. It is very evident that such a contract cannot be interpreted into one to erect a building by a certain number of days’ work, so that if the builder is prevented, by the delays of other workmen, from going on with his work, he is to be excused; if such be the law, the delay of an hour would be sufficient to make it a contract at large, as laid down in Thornhill v. Neats, (ubi sup.): Every one who contracts to do a work by a certain day, is bound to do it, unless it is rendered impossible by the acts of the party to whom he is bound; a mere temporary hindrance is not sufficient, although he may recover damages therefqr.

If, therefore, the plaintiffs were bound to make out that the delays of the defendant and his workmen had rendered it impossible for them to complete the building by the stipulated time, (and there was no direct evidence that they had produced such a result in this case, or even of the period indispensably necessary to finish the mason and iron work of such a building,) it is plain ho data were furnished to the Jury, from which legally and properly to infer that the defendant or his agents had deprived the plaintiffs of the power of complying with (heir obligation ; and mere evidence that they had been delayed six, eight or ten weeks in the performance of then work, would not alone, without such other evidence, assist the Jury in coming to a correct conclusion, whether or not such delay rendered the work impossible within the allotted period 5 it would be as much a matter of conjecture for them as if this Court were now to pronounce upon the effect of such delay. In this case, too, the plaintiffs made no complaint to the defendant of any delay except the sheath-piling at the beginning, for which he was not responsible, and they only bring up such delays now as an excuse, after failing to perform their contract.

It is true, no request was made to the Court to instruct the Jury, that, there being no evidence to show that the delays proved had rendered it impossible for the plaintiffs to complete the building by the first of February, they were to disregard it in determining the defendant’s right to recover. Hor did the learned Judge charge that they were at liberty to determine, in reference to such claim, whether such delays had put it out of the power of the plaintiffs to perform; but he instructed them that the plaintiff was liable, “if he had not shown that he was pre- “ vented by the carpenter from completing his work by “ the stipulated time,” thus strongly implying that if he had so shown, he was not so liable. He had previously charged: “that a failure of the carpenters to do what was “ indispensable to the progress of the worlc in the contract “ was the same thing as a delay or prevention of the plain- tiffs from performing it by the stipulated time, in conse- “ quence of the act of the defendant or the carpenters “ employed by him,” and that, “ if the delay was such as to throw the completion of the worh beyond the first of “February, the plaintiff was entitled to recover.”

This instruction certainly does not conform to the views before urged, and the learned Judge seems to have fallen into the error of supposing either that the time consumed in the delays was necessarily to be added to the period allowed in the contract, so as to allow the plaintiffs additional time, or that the Jury were at liberty, without any proof of the time indispensably necessary for the work, to infer that such delays took away all power from the plaintiffs of completing their contract within the time, and rendered it a physical impossibility, by any reasonable diligence to do so; with all due respect, I have been unable to bring myself to that conclusion. It was an error even in regard to the plaintiffs’ right to recover, which, although fatal to the present verdict, might be immaterial on a new trial, because there was strong evidence of waiver as to that; but it certainly misled the Jury as to the defendant’s recoupment, who established, by uncontradicted evidence, damages from the delay in completing the building.

There seems to me also another error in the disposition of this case. The contract was under seal, and must be construed according to the legal interpretation of the language contained in it; not a word is said in it of any obligation by the defendant to do anything but pay the installments of the price as they become due; nothing is said of any carpenters’ work to be done to/the building. The obligation of the plaintiffs is simply to do a certain amount of work, or complete á certain building by a certain day, and they undertake to furnish all the instruments, implements, and utensils by which that work is to be done; and it is now proposed to insert in the instrument an implied condition to qualify the plaintiffs’ obligation, to wit: “that the defendant shall employ carpenters and “other workmen, to convert such building or enclosure “into a store, and that such workmen shall proceed to “ do all the work to be done by them, with such diligence “ as to facilitate to the utmost the completion of the work “undertaken by the plaintiffs within the time allotted,” These are plainly the terms of the condition, for this doctrine must proceed upon the theory or presumption of law that the plaintiffs have taken the minimum or shortest possible limit for doing the work, and that any delay, however brief, deprives them of the power of doing it within that time; in other words, that the plaintiffs are entitled to find, at every stage of their work, the moment they have completed it, every succeeding operation of the carpenters completed in the time in which it could have been done by reasonable diligence, otherwise that they are discharged by any delay of any considerable duration beyond that.

I assume that it will not be contended seriously that anymore delay of the carpenters in facilitating the progress of the plaintiffs’ operations, is equivalent, in, its effect on the plaintiffs’ liability, to a positive obstruction to them, such as the taking away the possession of the ground from the builders by the owner would be. A refusal to furnish facilities can never be equivalent to a positive hindrance, unless by the terms of the contract such facilities are the only ones to be employed; the principle, therefore, contended for by the plaintiffs’ counsel cannot proceed upon the ground that the defendant interposed obstacles, because they themselves could have employed carpenters to do the neglected work.

I am unable to perceive how an undertaking to complete a specified piece of work by a specified time can be hampered, by construction, with the condition that the person for whom the work is to be done shall furnish any facilities for doing itthere is no rule of interpretation invoked to sustain it, but merely, that carpenter work being necessary, the defendant was bound to furnish it, and the contract must be so construed. I understand that a person who undertakes to do anything, undertakes thereby to do all things necessary to enable him to complete it, even to the surmounting of impossibilities, or to be responsible in damages for not doing so. There is no special privilege allowed to a builder’s contract, which makes it an exception, and renders all the precise terms of it, as regards the builder’s obligation, nugatory, but imposes duties not specified or alluded to in it,- on the owner. The Court clearly can take no judicial cognizance of the necessity of carpenter work to enable a mason to complete his work, and if it could do that, it could not assume that the onus of supplying it lay upon the owner, who merely covenanted to pay the price.

It is true it may be said that such a construction would involve a great hardship upon the plaintiffs, because they would then be bound to find carpenters, or build without their assistance; that may be so, but the Court would not be bound to relieve from the consequences of an undertaking deliberately entered into, by grafting qualifications to make thehardship less. But this is rather an imaginary than a real evil. In this case, carpenters were employed by the defendant, who undoubtedly preferred having that work done, to leaving the plaintiffs to complete their work without it, as they had a right to do. This was what the plaintiffs relied on, to wit, the interest of the defendant, and not on any absolute obligation of his to furnish carpenters’ work. They, as well as the defendant, took the risk of such carpenters doing the work within the time agreed on, so as to enable them to complete their contract within that time, and are not now to throw the whole responsibility on the latter. Suppose the owner of a lot of land makes two separate agreements with a mason and carpenter, to finish their part of the work of a building by a certain day, and either of them finished his work by that day, but does it in such a manner as to delay the other beyond the day, could the owner sue for damages by reason of that delay ? Is there anything in this contract enabling the defendant to sue the plaintiffs for damages in delaying the carpenter ? If there is, I have been unable to find it, and if not, is not the owner entirely at the mercy of contractors, in regard to delays ?

But it may be proposed to modify such proposed condition further, by inserting in it, that the defendant shall ■cause the carpenters’ work to be done from time to time, ,on request of the plaintiffs, because it may seem hard that the owner, after making his contract, should be compelled constantly to watch the progress of the building to see that each contractor did his duty to the other,—that not a. moment’s time was lost in putting beams on the walls or walls over the beams. If so, as the defendant was never applied to, except in regard to the sheath-piling, the plaintiffs can only sustain their case by making the carpenters the defendant’s agents; and this certainly they cannot do; a mere contract with them to do certain work, does not make them agents, to bind the defendant, to discharge the plaintiffs from the performance of their covenant; there is nothing in the contract in question to make them so; and it would certainly be a liberal interpretation of it to hold that it not only made it incumbent on the defendant to employ carpenters, but that every carpenter §o employed by him was an agent, notice to whom, by the plaintiffs, should be equivalent to notice to his principal; if so, on a similar contract with the carpenters, the plaintiffs would be the defendant’s agents, and the conduct of or conversation between the two contractors might give away rights of the defendant more valuable than the lot on which the building was erected.

I therefore am clearly of the opinion that neither any rule of interpretation of sealed instruments nor the nature of the contract, warrants the interpretation of the condition in question, by which the plaintiffs’ obligation to do their work within the time fixed, is made to depend on due diligence of the carpenters to be employed by the defendant, so that a delay by the latter, although not rendering the plaintiffs’ work impossible to be performed within the time, should excuse them from such performance. And without such condition, I am still more clearly of opinion that without the slightest evidence to establish the impossibility of the plaintiffs completing such work within the time, notwithstanding the delays, the plaintiffs were not excused from performing the work, nor the defendant debarred from damages for its non-performance.

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

Bosworth, Ch. J.

My brother Mobcriee thinks the judgment should be affirmed, and my brother Eobertsor is of the opinion that none of the exceptions taken by the defendant are tenable. But he thinks the defendant should have a new trial on the payment of costs, on the ground that, in his judgment, portions of the charge are erroneous, and were calculated to mislead the Jury. The Judge charged, that if there was a delay or interruption of the work of erecting the building “resulting from the omission of the carpenters to do what was essential to enable the plaintiffs to-proceed with their work, and if that delay was stich as to throw the completion of the work over the first of February, then the plaintiffs would be entitled to recover, being prevented from completing their contract in time,. by the act of the defendant, or his carpenters.” t

This charge makes the delay or omission of the carpenters to do the work essential to enable the masons to proceed with the masons’ work, equally an excuse as a delay caused directly by the defendant in person, and charges him with the consequences of their default, to the extent, that if the plaintiffs were prevented thereby from performing their contract within the stipulated time, they are deemed to have been prevented by the defendant.

The defendant did not except to this instruction, nor has he made any point on this appeal which suggests that it is erroneous. '

It is quite clear from the terms of the contract itself, that the plaintiffs only contracted to do the masons’ work mentioned in the specifications annexed to their contract, and to furnish the materials necessary therefor.

As between the plaintiffs and the defendant, the latter was to do or procure others to do the carpenters’ work. The masons’ work could not be completed, unless the carpenters’ work was performed pari passu.

If, when the masons’ work had progressed so far as to be in readiness to receive the first tier of beams, it should be ascertained that no carpenters had been employed to do the carpenters’ work, of, if there had been, that they had failed and refused to go on with their contract, the defendant could not take the position that he would not employ other carpenters, and that the masons should go unpaid for what they had done, unless they completed their contract by the stipulated time, which would be a physical impossibility, no carpenters’ work being performed.

The masons are not parties to the carpenters’ contract, and may not know who are to have it, at the time their own is executed. The only parties to the carpenters’ contract, are the carpenters and the owner. If they break it and cause damage to the owner, his remedy is an action against them. And the same is true of the masons’ contract. If both are in default, and thereby severally cause damage to the owner, he has his remedy against each. But a breach by the carpenters of their contract with the owner, by which the completion of the building is delayed beyond the stipulated time, and the masons are prevented from making strict performance, cannot be the foundation of an action by the owner against the masons, nor work a forfeiture of their right to recover for what they have done under their own contract.

A contrary rule, would not only prevent the masons, who had progressed with their contract with the utmost despatch, and who, but for the default of the carpenters, would have completed it in time, from recovering any unpaid installments, but make them liable to the owners, for damages for not completing it by the contract time, although the failure to complete it was caused entirely by the conceded default of the carpenters. This would make them guarantors, that the carpenters should perform their contracts with the owner, with all reasonable diligence and despatch.

I am quite clear that there was no error in the part of the charge now under consideration, nor in the admission of evidence to show that by the fault of the carpenters the plaintiffs were delayed in the prosecution of their work. (Holme v. Guppy, 3 Mees. & Wels., 387; The Great Northern Railway Co. v. Harrison et al., 14 Eng. L. & Eq., 189; Thornhill v. Neats, 8 Com. B., N. S., 831; Young v. Hunter, 2 Seld., 206, 207; Goodwin v. Holbrook, 4 Wend., 377.) The plaintiffs are excused for any delay caused by the omission of the defendant to do an act which necessarily precedes performance by the plaintiffs, and without the doing of which, performance by them is a physical impossibility, where, by the necessary import of the agreement between the parties, the obligation rests on the defendant to do such act, or procure it to be done. (Knight v. Waterworks Co., 2 Hurls. & Norm., 6.)

There being no error in the instruction now under consideration, should a new trial be granted on the ground that the evidence was insufficient to warrant the Jury in finding that the plaintiffs were' prevented by the carpenters from proceeding with and completing the work by the stipulated time?

The plaintiff, James Stewart, testifies to a delay of “ a week or teh days,” by the refusal of the carpenters to put on the first tier of beams, as is usually done in erecting buildings of this size. This occurred the last of July or early in August. George Stone testifies to a delay from the 21st of Kovember to the 16th of December, caused by the omission of the carpenters to put up the stairs and put in the windows.

On this evidence, the Court cannot hold, that the verdict is clearly contrary to evidence, or that it is not warranted by it. The Judge before whom the motion for a new trial was heard at Special Term, held the verdict could not be disturbed on the ground of its being against evidence.

Keither of the carpenters was sworn to contradict the evidence, given in respect to the delay caused by them, although one of them was present at the trial.

As to the item of $200 for sheath-piling, on the westerly side of the building in question: there is no substantial conflict between the evidence of the plaintiff, Stewart; the defendant; and Thomas, the architect.

Stewart testifies, that, in consideration of making his contract $11,400, instead of $11,600, Keteltas would warrant that the store on the west side would be built forthwith." This would render sheath-piling on that side unnecessary; the owner of that lot did not build on it, and sheath-piling became necessary. The plaintiffs delayed commencing their work, on that account, upon consultation with, and by the approval of, the defendant, in the hope that the owner of that lot would build on it, and thus save the expense of sheath-piling. The defendant does not deny having the conversations to which Stewart testifies. He says, “ it was a doubtful question whether, by the contract, I was not bound” to pay for it; “I told him so, and I said, if you think you are entitled to it, I would rather pay it, if Thomas says so. * * Thomas consulted me about that matter; he said the work was delayed. I told him, in any event, to have the sheath-piling, if the building was delayed.”

Thomas says: “ I presume Stewart may have waited for the excavation of the vault on the west side, two or three weeks, but he was to give me notice when he could not wait any longer, &c. * He did so. I went immediately to Keteltas the same day, and told him; then he gave me orders to let Stewart have the sheath-piling done immediately, and to specify the price for doing it. Stewart did it; it was $200. I think he commenced next day or the day after, with the sheath-piling, and it was urged along with all practicable dispatch.”

It may be said of this branch of the case, that after the contract was executed, and after it was ascertained that sheath-piling on the westerly side would be necessary, a question arose between the parties in relation to it, and who was to bear the expense of it. That question was finally settled by the defendant promising to pay the plaintiffs $200 for doing it, and they, relying on this promise, did it. I think this subsequent action of, and agreement between, the parties, does not leave the defendant at liberty to insist that the written contract required the plaintiffs to do it at their expense.

As to the final certificate of the architect, in the case of each payment prior to the last, a certificate was produced, on which the defendant paid, without objection, and no question can arise as to their sufficiency.

By the contract, the last payment of $3,000 is payable “ when all the works are completely finished and certified by the architect to that effect.” The certificate given is, “ that Messrs. Stewart & Howell have completed the mason work to your building in Leonard street.”

“ Complete,” in common parlance, means “having no deficiency, perfect,” and the verb, to complete, means “to finish, end, perfect." (Web. unabridged.) It fairly imports that the building was completed to the satisfaction of the architect, as he gave the certificate, and also, that in his judgment, it was completed in accordance with the plans and specifications. The contract does not require that the certificate shall contain the words, “ the works are completely finished.” Any words, of clearly equivalent import, are sufficient. The completed building, includes “ the works,” and when it was completed, according to the ordinary acceptation and meaning of that word, it was completely finished;—completely, means, “ fully, perfectly, entirely.” That it was, in fact, finished in every respect, according to the contract, when the certificate was given, is free from doubt. The architect testifies that “ the mason work was completed from the 15th to the 20th of March." I think, therefore, that there is no defect in the terms of the certificate, which is an answer to' this action.

My conclusion is, that there is no ground which will justify the Court in interfering with the judgment, and that it should be affirmed.

MoírcEiEE', J., concurred in this opinion. Judgment affirmed.