This case involves one of the same questions which have been passed upon by this court in Smith v. Brady (17 N.Y., 173), and other cases there cited, and particularly McMillan v.Vanderlip, 12 J.R., 165; Reab v. Moor, 19 id., 337, (affirmed by the Court of Errors), and a similar judgment must follow unless the facts so far differ as to authorize a different result.
The refeere has found as a fact that there was a contract to erect the addition to the brewery. It was by parol, and without *Page 488 any stipulation in respect to the sum to be paid or the time of payment, except that the labor was by day's work. Under this contract Burwick, the contractor, entered upon the work, in September and October, 1851, and continued in it until in the latter part of October, 1853, he abandoned it and absconded, leaving it in an unfinished state, when the defendant took it in hand and completed it on his own account.
This finding would seem to dispose of the whole case in favor of the defendant, according to the decisions just referred to. The contract was an entire one, and indivisible, and Burwick was not entitled to recover without a full performance on his part. It matters not that no price was fixed upon as a compensation. The defendant, on completion of the work, would be liable to pay what the work and materials were reasonably worth; having the right to insist, however, that the contract should be first performed by Burwick. Instead of performance, he willfully abandoned the work in an unfinished state, leaving it upon the hands of the defendant to complete, subjecting him to the damages necessarily arising from such a course. The judgment must be affirmed.
JOHNSON, Ch. J., COMSTOCK, DENIO, ALLEN, GRAY, GROVER and STRONG, Js., concurred.