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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 409 The judgment rendered at Special Term rests on the twelfth finding of fact, which for convenience we quote again as follows: "XII. That thereafter the defendant, Manneschmidt, proceeded, to and did complete the performance of said contract, for the account of the plaintiff."
This finding involves two questions of fact, whether the owner completed performance of the contract and if so whether such performance was "for the account of the plaintiff." The principal part of the judgment depended upon performance of the contract, for unless it was performed either by the plaintiff or in its behalf, it has no lien to enforce, except for the extra work. The Appellate Division had no power, under the facts found, to strike bodily from the judgment the principal part thereof and to affirm it as thus modified. Two courses were open to that learned court: (1) It could reverse the judgment on the facts, or on the law, if legal error existed, or upon both, and order a new trial; or (2) it could reverse the judgment and order a new trial, unless the proper parties should stipulate to make the reduction suggested, and in that event it could affirm the judgment as thus modified. Neither course was pursued, but the judgment was modified without consent by making an absolute deduction therefrom and a new trial was not ordered. The modification apparently involves the reversal of the finding of fact above quoted, as otherwise *Page 411 there would be no basis for it, even upon the assumption that the court had the power to make it. The opinion of the court also shows that this was intended, for it is expressly stated that "there was no evidence whatever to support the said finding," and that the other findings "required that the complaint should be dismissed, except, it may be, for the items of extra work found." The court apparently intended to reverse on the facts and to dismiss the complaint as to all but the extra work. While it had power to reverse the findings of fact, it had no power, under the circumstances, to dismiss the complaint wholly or in part, or to reduce the judgment by striking out the greater part thereof without the consent of the parties in whose favor the judgment was rendered.
We also are of the opinion that there is no evidence to support the twelfth finding of fact as to either of the propositions involved therein. After the plaintiff refused further performance, the owner proceeded to finish the building. She had to finish it in order to make any use of it and to save what she had already paid to the plaintiff. She did not, however, complete the building according to the plans and specifications, for the undisputed evidence shows that many of the defects specified in the findings were not remedied and that no attempt was made to remedy them. The evidence further shows without dispute what the owner did, the amount expended by her and the particular item of work or materials for which each payment was made. It also shows specifically that what was done did not include seven distinct defects in the work and material of the plaintiff, as those defects were found by the court at Special Term. While some defects were cured, others were not in any way affected.
Moreover, there is no evidence that the owner proceeded or intended to proceed under article five of the contract. No "refusal, neglect nor failure" was certified by the architect and "three days written notice" was not given to the contractor. No notice of any kind was *Page 412 given by the owner and none was required if she proceeded on her own account. She neither broke the contract nor abandoned the work but the contractor did both. The owner was under no obligation to finish performance of the contract on account of the contractor, for she had the right to finish the building on her own account and hold the contractor liable in damages for the breach, as she sought to in her counterclaim. It is true that in finishing the house she followed the plans and specifications so far as she completed it at all, but this was necessary in order to get a building as near as possible like the one she had contracted for and to measure the damages she had sustained by the breach of the contract.
The learned trial justice thought, as he stated in his opinion, that "it was the intention of the parties, as manifested by article five of the contract, that in case of the abandonment of the work by the contractor, the owner should proceed to completion under the contract and specifications." Commenting on this conclusion the Appellate Division said: "Owners would be in evil case indeed if this clause applied when the contractor after breaking the contract by substituting inferior work and material for that contracted for, or altogether omitting work and material contracted for, abandons the work altogether, as is the case here; for they could not leave their property in its unfinished condition, and yet if they completed it they would have to do it as the agent of their contractor who had thus grievously wronged them. The idea that a contractor may by abandoning the work put the owner in the position of being obliged to complete as his agent or trustee, if he completes at all, and to account to him at the end, only needs to be stated to expose its absurdity."
The owner did not plead that she completed the contract nor that it was completed by any one, but she alleged a failure by the plaintiff to complete in certain *Page 413 specified particulars and that she thereby sustained damages. No presumption arose from the pleadings or proofs, including the contract, that what the owner did was on account of the plaintiff. We think that there is no evidence that the contract was so performed as to remedy many of the defects of the contractor and none that in finishing the building, so far as it was finished, the owner acted under article five of the contract, or as the agent of the contractor in any way. The error of the Special Term was in making finding number twelve without evidence to support it and the error of the Appellate Division was in the attempt to modify instead of expressly reversing on the facts in the manner required by section 1338 of the Code of Civil Procedure and ordering a new trial.
Both judgments below should be reversed and a new trial ordered, with costs to abide the event.
CULLEN, Ch. J., HAIGHT, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; GRAY, J., absent.
Judgments reversed, etc.