The judgment and order should be reversed an.d a new trial granted, with costs to appellant to abide event.
The action was brought upon a contract for the construction of a refrigerating plant for use in Mr. Rochevot’s brewery in the city of Buffalo, N. T. The original contract was made September 12, 1885. It contained a full description of the plant and a guaranty on the part of the defendant that it would do the work prescribed in the contract, and an agreement that if it would not do so the defendant would remove it and refund any money paid for the same. Thereafter and prior to January 17, 1887, the plant wras constructed and placed in the brewery. It failed to do the work prescribed in the contract satisfactorily, and thereupon a new con*508tract was made permitting the defendant to make changes in the construction so that if would do the work prescribed. The guaranty in the original contract was retained and reiterated in the new contract. The changes in the plant were made, but it was still claimed that the guaranty was not complied with. After some correspondence and negotiations the defendant was finally requested by writing served February 13, 1888, to remove the plant from the brewery and refund the money paid him therefor. This request was not complied with,- Some portions of the plant were subsequently removed by Mr. Rochevot and some were retained. There had been paid to defendant upwards of $25,000 for the plant. Mr. Rochevot died in January, 1891, and this action was brought in June, 1898. The plaintiffs-claimed that the damages for that breach of the guaranty and contract were the amount which had been paid defendant, upwards of $23,000. The jury rendered a verdict for $16,500. In the communication of February 13, 1888, requesting the removal of the plant and the refunding of the money paid, three objections to the plant were specified. Upon the trial the plaintiffs were permitted to give evidence of other defects' and the defendant claims that this was error ; that the plaintiffs should have been-limited in their proof to the three objections specified in the jaaper of February 13,1888; that all other objections xvere waived. The plaintiffs had two remedies for the alleged breach of the guaranty and contract: First. They could require the defendant to remove the plant and refund the money as he had agreed to do by the express terms' of the contract. Upon refusal • by defendant to comply with this request the plaintiffs could remove the plant themselves and sue for the money which had been paid. Second. They could retain the plant as their own property and sue for damages for the breach of the guaranty and contract.
There is controversy between the parties as to which remedy the plaintiffs were seeking to enforce here. The defendant claims that the complaint was to recover back the money paid, but the plaintiffs claim that the action was brought to recover damages for a breach of the guaranty and contract. The court permitted the trial to be had upon plaintiffs’ theory, and apparently the complaint alleged all the facts necessary to constitute such a course of action. A recovery could have been had very likely upon the complaint- for either cause *509of action. The defendant could have protected himself against surprise at the trial by motion before the trial to make the complaint more definite and certain, or by motion at the opening of the trial to compel the plaintiffs to elect upon which theory they would proceed.
The paper of February 13, 1888, was apparently served for the purpose of laying a foundation for a suit to recover back the money paid. It was unnecessary to serve such a paper for the purpose of a suit to recover damages for a breach of guaranty and contract. The plaintiffs must have abandoned their effort to recover back the money paid, because various parts of the plant were retained and used for a long time. They could got keep and use the property, or a portion of it, and still recover back money paid for the whole plant. The paper was served, however, calling upon the defendant to remove the plant and refund the money paid, and the papier, specified the three respects in which the plant failed to comply with the guaranty and contract. The defendant was then called upon to determine whether he would comply with the request or subject himself to litigation with reference to the matter. Under the authorities it would seem that, in deciding which course he would adopit, he had a right to rely upon the defects in the plant, specified in the paper served, as the only defects he would have to litigate, and that all others would be regarded as waived. (Littlejohn v. Sham, 159 N. Y. 188 ; Oakland Sugar Mill Co. v. Wolf Co., 118 Fed. Rep. 240; Railway Co. v. McCarthy, 96 U. S. 258.)
The defendant was fairly apprised by the paper served that he must comply with the request made or litigation would follow. He was not notified what form of action would be adopted. He took his chances of whatever attack the plaintiffs might make upon him if he refused to comply with the request: He had a right to rely upon the plaintiffs’ statement of the defects specified, in deciding what he would do, and to regard all others, if any existed, as waived.
The plaintiffs’ counsel seeks to distinguish the cases above referred to and claims they have no application to such ah action as this to recover damages for breach of an express guaranty and contract. We see no reason for the distinction claimed.
If this action had been to recover back the money paid, the *510waiver would certainly have existed, because the notice was aimed directly at that form of relief. Inasmuch as defendant was called upon to determine whether he would subject himself to attack in any form of action by failing to comply with the request, it would seem that the waiver would exist in the one form of action as well as the other. Norton v. Dreyfuss (106 N. Y. 90, 94, 96), cited by plaintiff’s counsel, does not seem to involve this question of waiver at all. Ho authority is cited which holds that this rule as to waiver does not apply to such a case as this. It seems to us that the rule is so applicable. The evidence of other defects than those specified in the paper of February 13, 1888, was, therefore, improper and should not have been submitted to the jury. This error requires a reversal of the.judgment and order.
It is said by defendant that it was error to submit to the jury the question as to whether the plaintiffs furnished, as they had agreed to do, ah adequate supply of water of the proper temperature; that there was no evidence that such supply of water was furnished.
We cannot consent to this claim. There was a great amount of evidence given relating to this subject; the court fairly submitted it to •the jury, and we think the jury were authorized to find, as they apparently did, that the supply of water was adequate and that want of such supply, was not the cause of the failure of the plant to do the work required by the contract between the parties.
We are of the opinion that error was committed by-the court in its charge with reference to the subject of damages. The general rule was properly laid down in the body of the charge, viz., the difference between the- value of the plant as it was and as it was represented to be,. At the close of the charge, however, the defendant requested that it be charged in effect that if the defective condition of the plant could be corrected by the expenditure of a small sum of money, the damages would not exceed the amount so necessary to be expended, and this the court refused. There was a basis in the evidence for the finding of fact suggested, and this being true, the conclusion must follow, as requested. (Bates v. Fish Brothers’ Wagon Co.., 50 App. Div. 38; affd., 169 N. Y. 587; Stillwell Manufacturing Co. v. Phelps, 130 U. S. 520.)
As said in the Bates Case (supra), “ What it will cost to bring the plant up to the full measure of the * * * guaranty covers *511the loss * * * and is in effect making the basis of the damages the difference between the actual value, and the value if it had corresponded to the guaranty. That measure is no more speculative than the opinions of the witnesses in any case who fix a value upon an article of this cumbersome kind in actual use.” (A steam-heating plant.)
And in Stillwell Manufacturing Co. v. Phelps (supra), “ The rule of damages adopted by the court below, of deducting from the contract price the reasonable cost of altering the construction and setting of the machinery so as to make it conform to the contract, is the only one that would do full and exact justice to both parties, and is in accordance with the decisions upon similar contracts.”
The court should have given the defendant the benefit of this rule, and a refusal to do so was an error which requires the reversal of the judgment and order.
It is said by defendant that, there was no proper evidence upon which the jury could assess the damages under the charge of the court, even if the charge was correct.
The first element in the rule of damages, the value of the plant as represented, was the contract price, $28,000. The other element, the value of the plant as it was when accepted by the plaintiffs, was arrived at, not by giving proof of such value of the whole plant as a plant, but by showing the value of certain portions, which the plaintiffs used, as $7,000, and that the other portions were entirely worthless. While this was a peculiar way of arriving at the second element in the rule of damages, yet we cannot see why it was erroneous. The witnesses might have been asked the general question of the value of the plant as it was, and have given the answer $7,000, and when inquired of as to the method of arriving at such result, could have answered that they allowed full value for certain parts and nothing for the others, which were worthless. The whole matter in either event would be for the determination of the jury.
The evidence tended to show the damages were $21,000. The jury evidently regarded the parts of the plant thrown away as worthless as of some value because they rendered a verdict of only $16,500. It would seem, therefore, that they found the value of the plant as it was to have been $11,500, instead of $7,000, as stated by the witnesses.
*512We conclude, therefore, that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.
All concurred, except McLennan, P. J., and Seeing, J., who dissented.