I think that not only part but all of the judgment should be reversed, and for the following reasons : The action is to enforce a mechanic’s lien for $900, the fourth payment under a written contract for plumbing and gasfitting, which it is alleged became due on April 6, 1900, at which time, because of its non-payment, the plaintiff discontinued work. The answer admits that the first three payments were made, but denies that the fourth was due, and avers that the third was prematurely paid on condition that plaintiff should forthwith deliver all materials and fixtures, which he never did, abandoning the work before the fourth installment was payable, wherefore defendant procured ■ the remainder of the work to be done at an expense of $1,790.66, and lost in rents by reason of delay incurred through plaintiff’s breach the sum of $1,000, leaving a balance due from the plaintiff.
The defense of a new agreement, whereby the plaintiff was to “ deliver forthwith ” ail the fixtures, is based upon a letter signed by the plaintiff when he received the third payment that he would “ proceed with all possible dispatch to complete the plumbing work * * * according to my original contract * * * provided that payments are made as the work progresses according to the contract.” This certainly is not an agreement to furnish forthwith all the fixtures, nor anything more than a ratification of the original contract and may be disregarded. It throws a flood of light upon the situation, however, and is, therefore, most helpful in discovering the true relations of the parties.
As testified, its purpose was to enable the defendant to procure more money or advance loans in order to complete the erection of the building and it appears that the entire work hinged upon the *158defendant’s receiving moneys by way of loans which were made to him as the structure neared completion. Thus, in this very contract under which the plaintiff claims, the installments were made dependent not alone upon the plaintiff’s work being done, but upon the defendant’s receipt of payments. The first '•installment of $850 Was due when iron sewer, soil and vent lines were in “ and brown mortar payment is due; ” the second of $800, when gasfitting and water supply lines were in “ and white mortar payment is due; ” the third, of $700, when lead roughing and testing was done “ and standing trim payment is due; ” the fourth, of $900 (which is sued for), “ when half of fixtures are set and doors hung payment is due,” and the last payment of $950 was to be made “ when all fixtures are set and job completed.”
The plaintiff testified that he had difficulty in obtaining the third payment from the defendant because the latter was out of funds, and he insisted that the payments should be in accordance with the terms of the contract and this was embodied in the letter he signed; that on the 28th of March, 1900, he sent word to the defendant that half of the fixtures as called for in the fourth payment would be set on April sixth, and that on April seventh, in conversation with defendant’s superintendent, the latter admitted that half of the fixtures were set and promised that payment would be made the fol-owing Monday morning, April ninth. Plaintiff’s workman corroborates this testimony and the superintendent himself says that plaintiff came to see about his payment and he told him if he was-right he would get his money. And by letter dated April seventh, plaintiff- notified defendant that the fourth payment was due. Not having been paid, he discontinued work and he téstifies that the defendant in conversation about April twelfth said he did not have the money to give him and suggested that he put in more fixtures' so a new loan could be had, which he refused to do, although he did write a memorandum to the effect' that “ 90% of the balance of the fixtures . * * * can be delivered in three days after order for same is given .by me.” The payment, however, was never made.
It -thus appears that the real difficulty, which was the one recognized by the parties, was the inability of the -defendant, to get funds with which,to meet, the'demands made upon him in the -erection Of' *159the building, and the contention that the plaintiff had not strictly performed his contract and was not, therefore, entitled to payment resulted from an afterthought.
It is urged that the rule to be applied in determining the merits of. this contention is not whether the plaintiff had substantially performed the work required to entitle him to the fourth payment, but whether he had performed his obligations “with-'out any omission so substantial in its character as to call for an allowance of damages,” inasmuch as in this case the plaintiff left the work before the entire contract was- completed and brought suit to recover the installment earned and not paid. The words, which we have quoted form a part of what was said • in the case of Van Clief v. Van Vechten (130 N. Y. 571), which contains an admirable statement of the law on the subject. As therein said: “ The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the contract and has succeeded, except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained' by the omission. * * * But when, as in this case, there is a willful refusal by the contractor to perform his contract, and he wholly abandons it, and,, after due notice refuses- to have anything more to do with it, his right to recover depends upon performance of his contract, without any omission so substantial in its character as to call for an allowance of damages if he had acted in good faith” The crucial question, therefore^ which determines which rule shall be applied is whether or not the contractor has acted in good faith and not whether or not he is suing to recover an installment rather than the entire 'or final payment. Here the evidence is that the contractor did act in- good faith and intended and tried to comply with the terms of the contract, whereby he was to receive the fourth installment; and I think, therefore, that the general principle of substantial performance should govern.in determining his rights.
Furthermore, we should give tó the contract under consideration a fair interpretation from the standpoint of those who made it and not according to its literal.phraseology. It was-intended to provide a measure of the work and thus set the time for the partial pay*160ments. Certain leading items were specified and the condition was attached that the defendant himself received a stated installment. The. final payment, which was larger than the others, was to be made “ when all fixtures are set and job completed.” Evidently, if each and every implied detail of the work which, under a precise and rigorous construction, would be grouped in one of the earlier payments, was actually intended to constitute a condition precedent to the several payments, then these words, “ and job completed,” would be without meaning. A just and manifest interpretation of them, however, would be that all the various unessential and minor details of the different classes of work should be performed and completed, not before payment was due by earlier installments, but only before the final payment. This interpretation, moreover, is borne out by the actual conduct of the parties, for though it is now insisted that the' plaintiff was not entitled to the fourth payment relating to the setting of fixtures because he had not put in place certain vent pipe extensions, this work belonged, strictly speaking, to the first payment, which together with later payments, was made without such or any objection being made.
It is admitted that the “ doors hung payment ” had been received by the defendant and that there were more than half, or forty-seven of eighty-nine fixtures set, and at least half of each kind, which are the two requisites stated for the fourth payment. Because, however, of the failure of the plaintiff to actually set the vent pipes mentioned, to put in place detachable rubber' aprons and shampoo connections in the bath rooms, to paint the pipes, to screw on covers furnished for tubs, to replace some broken slate, to connect a waste pipe, to supply certain strainers, to rectify a leak in a valve and in a gas pipe, to repatch some plastering necessarily removed to adjust pipe, it is claimed that he forfeited his right to the fourth installment. The deficiencies specified were covered, I think, by the final and not the fourth payment, and, therefore, constituted no reason for the defendant’s failure to pay the sum demanded; but even if they were, matters which should have all been attended to prior to the fourth installment, none of them were of such a character as to preclude plaintiff from payment for. what he had in good faith performed, provided he had substantially completed his work up to that time.
*161Each of the alleged defects are reasonably explained by the plaintiff. The vent pipes though furnished were hot adjusted at the time as the tin roof was not on and the calking of these pipes was deferred till such work was done. The rubber aprons and connections were obtained, but in order to keep them clean and safe, were not attached and when sent to the premises with some other material after April seventh, they refused by the defendant. Of the remaining items, some were not even mentioned in the specifications as they were so trivial, and all could be most readily and satisfactorily attended to, as for instance the painting of pipes, the repairing of leaks and the patching of plastering, when the final touches were given. Hone amounted to deviations from the contract and all were minor in character. The substantial and real requirement for this payment that half the fixtures, the bath tubs, pipes, faucets, etc., which augmented the value of the building, should be put in, was complied with. What is required, as said in Phillip v. Gallant (62 N. Y. 264), is that “ there must be no willful or intentional departure and the defects must not pervade the whole, or be so essential as that the object which the parties intended to accomplish, to have a specified amount of work performed in a particular manner, is not accomplished.”
I think the plaintiff’s evidence abundantly shows that he has fairly and justly earned the sum for which he sués to recover, and that the judgment, accordingly, should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment so far as appealed from reversed and new trial ordered, with costs to appellant to abide event.