I think the judgment should, be affirmed for the following reasons:
1. The plaintiff was under no obligation to construct the brick underpinning wall. By the contract lie was to “ build and complete a cellar * * * as shown upon the drawings and set forth in the specifications prepared by architect; the which drawings and this specification are verified by the signatures of the parties hereto, and are taken as a part of this contract.” No specifications were ever signed, and hence the paper drawn by the appellant’s architect and containing the provision as to the underpinning was not, on its face, part of the contract. If the failure to sign it was a mere inadvertence,, and it was in fact the paper contemplated by the parties, other means of identification than the signature might be sufficient. But the evidence for the plaintiff shows that his signature was withheld purposely because he refused to build this brick wall. In connection with the presumption furnished by the absence of his signature, the .evidence in'his behalf strongly preponderates.
2. ' The neglect to build this wall is the principal charge against the plaintiff. The appellant gave evidence to show that in other particulars the work was not completed, but the uncontradicted testimony of the plaintiff showed that, although at the period of which the appellant’s witnesses spoke the work was not quite done,, it was finished soon after. Confusion has resulted from the fact that the appellant employed the same man (one Fortunati) to build the underpinning who had previously built the cellar wall for the plaintiff. The preponderance of evidence is to the effect that the plaintiff -built a complete cellar wall, exclusive of underpinning; in other words, that he substantially performed his contract. Any incidental omission was more than compensated for by the referee’s deduction of a large part of the sum paid to Fortunati for the underpinning work. This was, in fact, unjust to the plaintiff, but furnishes no ground of complaint to the appellant.
3. The referee found that the work done was of the value specified, and there was no proof of value in the case. But the evidence shows that he allowed .for the work done at contract prices with the deduction specified. As plaintiff substantially performed, this was proper, and, in support of the judgment, the existence of this and the other facts alluded to may be ascertained from the evi*295dence. (Ogden v. Alexander, 140 N. Y. 356, 362.) It would, however, he impossible to sustain the judgment on the theory that the action was upon a qxiant/u,m meruit on account of the failure of proof mentioned. The contract prices are alone insufficient evidence of value. (Gumb v. Twenty-third Street Railway Company, 114 N. Y. 411, 414; Wyckoff v. Taylor, 13 App. Div. 240.)
For the reasons stated the judgment should be affirmed, with costs.
Van Brunt, P. J., and Bumsey, J., concurred.