Michael Lennon, Appellant, against Mary F. C. Smith, Respondent

Michael Lennon, Appellant, against Mary F. C. Smith, Respondent. (Decided May 18th, 1888.) Plaintiff’s contract for mason work to be done on a building, provided that it should be done in accordance with specifications “ verified by the signatures of the parties,” which were to be “ taken as part of the contract:” that the work was to be done “to the full satisfaction of the architect,” and the money payable “ upon the order of the architect on completion of the work.” The contract also provided for the payment of a penalty of §20 for each day the work remained unfinished beyond the time specified. It appeared, on the trial of an action to enforce a lien, that the specifications were read over to plaintiff at the time of signing the contract, but were not signed, plaintiff saying that it was not necessary; that the work was not performed in accordance therewith, and that there was never a substantial performance of the agreement, and that the architect for such latter reason refused bis certificate. Held, that the specifications were made a part of the contract, although not signed; that the architect was justified in refusing his certificate; and that defendant could recover under his counterclaim, as liquidated damages for a breach, the stipulated penalty. Appeal from a judgment of this court entered upon the report of a referee, dismissing plaintiff’s complaint, cancel-ling a lien, and awarding the defendant a money judgment upon a counter-claim. The facts are stated in the opinion. Edward T. Wood, for appellant. Erank E. Smith, for respondent. [MAJORITY — Bookstaver, J. —] Bookstaver, J. — The action was brought to foreclose a mechanic’s lien on property owned by defendant. In May, 1886, the parties entered into a written contract, whereby plaintiff undertook to excavate a cellar, build a cellar-wall, and do certain other work for defendant at a fixed compensation. This work to be done by a given day. The contract provided that' the work was to be done in accordance with specifications “ verified by the signatures of the parties,” which were to be “taken as part of the contract.” The specifications were no't, in fact, signed by either party. The contract further provided that the work was to be done “ to the full satisfaction of the architect,” and the money was payable “upon the order of the architect on completion of the work.” The architect refused to give any order or certificate that the work had been performed. It is well settled that a party wishing to review findings of fact made by a court or referee, must prepare a case con-taming all the evidence,- and have it so certified by the judge or referee settling it. If he omits to do this, the findings below are conclusive (Wilkinson v. Herbert, 13 N. Y. St. Rep’r 436; Porter v. Smith, 107 N. Y. 531; Spence v. Chambers, 39 Hun 193; Hagadorn v. Dodge, 2 N. Y. St. Rep’r 335). There is no such certificate in this case, and the report of the referee must be taken as final on this appeal as to the facts found by him. But if this were not so, we think there was abundant testimony upon the case presented, to justify the findings of the referee. The principal questions litigated were: 1st. Did the specifications set forth in the answer form a part of the agreement between the parties ? 2d. If the specifications formed no part of the contract, then had the work mentioned in the body of the contract been substantially performed? 3d. Was the architect justified in withholding his certificate ? From the evidence it appears by the testimony of the defendant’s witnesses, Cocheu and Pollard, that the specifications were prepared at the same time with the contract, and were read over to the plaintiff,-at the time it was signed; and that the reason why they were not signed was because the plaintiff, or his son, who was present and who signed the contract in his father’s name, said it was not necessary. The testimony also shows that plaintiff deliberately refused to perform the work described in the specifications, saying he “did not care a damn about the specifications; that they were not signed; that his counsel told him they were no good.” It is true, this is denied by plaintiff; but there is certainly evidence enough to justify the findings of the referee, that the specifications were adopted by the parties as a part of the contract when the agreement was executed; that the plaintiff never substantially performed the agreement; that he abandoned the work before such performance ; and that the action of the architect, in refusing to give plaintiff the order required by the agreement before the money became due and payable to the plaintiff, was not fraudulent, but based upon an honest dissatisfaction on his part with the work done. Under this state of facts, plaintiff was not entitled to maintain his action; and the complaint was properly dismissed, because: 1st. There was not a substantial performance of the contract (Smith v. Brady, 17 N. Y. 173 ; Glacius v. Black, 50 N. Y. 145; Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 88 N. Y. 648). 2d. Because the plaintiff wilfully refused to perform a part of the work required by the contract (Crane v. Kimball, 51 N. Y. 646). 3d. Because of-these two facts he failed to obtain the architect’s certificate (Byron v. Loe, 14 N. Y. St. Rep’r 823; Barton v. Herman, 11 Abb. Pr. N. S. 378; Smith v. Wright, 6 Thomp. & C. 694; Guidet v. The Mayor, 36 N. Y. Super. (4 Jones & S.) 537; Cross v. Belknap, 24 Week. Dig. 256; Doe v. Noble, Id. 557). There being .no exceptions to the referee’s refusal to find as requested by plaintiff, we cannot here review such refusals. A large number of exceptions were taken to the admission and rejection of testimony. We have examined all of those to which our attention was particularly called on the argument and in appellant’s brief; and while a number of them were undoubtedly well taken, yet it is clear that none of the testimony received or rejected under these objections could have influenced the .referee in coming to the conclusion he did on the questions before referred to; and the judgment will not therefore be reversed for these errors (Code Civ. Pro. § 1003). The only question remaining is in regard to the counterclaim. The right to recover tins is based upon a clause in the contract, providing for a penalty of $20 to be enforced for each and every day the work remained unfinished beyond the time specified in the contract. This the referee construed as meaning that that amount had been agreed upon as liquidated damages for each day’s delay. ’The rule seems to be that such a clause in a contract, where the damages resulting from a breach of it would be uncertain and hard to prove, is to be treated as liquidated damages, unless the language of the contract shows clearly that such was not the intention (Sutherland on Damages vol. I. pp. 512, 520; Cotheal v. Talmage, 9 N. Y. 551; O’Donnell v. Rosenberg, 14 Abb. Pr. N. S. 59; Pettis v. Bloomer, 21 How. Pr. 317; Farnham v. Ross, 2 Hall 167). What the parties call a “ penalty ” or a “ forfeiture ” may be held to be liquidated damages if, under all the circumstances, such appears to have been the intention; and, on the other hand, a real penalty cannot be successfully concealed behind the words “liquidated damages” (Pollock on Contracts p. 467; Noyes v. Phillips, 60 N. Y. 408; Sainlis v. Ferguson, 7 C. B. 716). In this case the fact of damage is apparent enough—other contractors were delayed, time was lost by defendant, other workmen had to be employed and materials purchased by defendant. It is also apparent that the precise quantum of this damage could not be easily ascertained or readily proven. At the time the contract was signed, the attention of the plaintiff was directed to the importance of having the work done at the stipulated day; and it is reasonable to suppose it was intended as liquidated damages. The judgment must therefore be affirmed, with costs. Larremore, Ch. J., and Allen, J., concurred. Judgment affirmed, with costs.