"By the terms of the contract, pkyment for the .work was only to be made upon the written certificate of the architect; therefore, the ' plaintiffs,, to maintain the action, in the absence of the certificate,' ,were required to show not only a demand and refusal of the architect to deliver the same, but also that it was unreasonably withheld; This being a part of the plaintiffs’ affirmative case, the burden devolved Upon them to establish, such facts, by a preponderance of proof. (Bowery Nat. Bank v. Mayor, 63 N. Y. 336.)
The complaint avers’complete performance of' the contract, save as to the time of completion, which it is averred was delayed by the defendant, and that such condition was also waived. The proof did not' sustain the averment of complete performance in the furnishing. of materials. On the contrary, it satisfactorily appeared that the contract was not specifically performed as to the furnishing of the trim and also of the doors and panels. As to. .the trim, it lias been eliminated'from consideration, and the only matter now before' the court relates to the sum which has been allowed for the doors and panels,-. In tips, regard, the court below was Only able to find from the evidence a substantial performance of the contract, and that the defects, were inadvertent and- not willful. The judgment which has been rendered in favor of the plaintiffs, therefore, must-stand upon this finding and the .right to recover under the finding of substantial performance. Upon this subject the burden of proof rested upon the plaintiffs, to show substantial performance, and they were also-required to show what would be fair and reasonable compensation for the; defects. In Spence v. Ham (163 N. Y. 220) it was said: “ Substantial performance is performance, except as to unsubstantial omissions.” And again : “ Unsubstantial defects may be cured, but at the expense of the contractor, 'not of. the owner. The contractor cannot recover the entire contract price when defects Or omissions, appear, for- he must' show not only that they were unsubstantial *395and unintentional, but also the amount needed to make them good, so that it can be deducted from the' contract price and a recovery had for the balance only. This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance.” And further, the court said : “ When the plaintiff shows that he performed his contract he is entitled to judgment for the contract price; but when he shows that he performed his contract except that through inadvertence he omitted to do some unsubstantial things, he is not entitled to recover anything until he shows that the things omitted, if worthy of any attention whatever, can be supplied for a comparatively small sum, in which event he can recover the contract price after deducting that sum. This rule is liberal to the' contractor, for it allows him to recover when he has not fully performed, and it cannot . be extended without danger to the integrity of the contract. As he does not show full performance, it is not requiring too much of him to show what it will cost to remedy the defects in order to permit him to recover the contract price less the sum allowed for defective performance. It is for him to show this, for otherwise the owner could say, 1 am I to pay according to my promise when the contractor does not perform according to his ? ’ The one who fails in fully performing and who invokes the doctrine of substantial performance, must furnish the evidence to measure the compensation for the defects, as that is the substitute for his failure to do as he agreed.”
Comment could not make plainer the rules of law governing this case in considering the findings of the court and the basis of its decision as appears in such findings and its expressed reasons therefor. The court having refused, to find actual performance of the contract, the burden rested upon the plaintiffs to make out their cause of action. The language of the finding in respect to the fulfillment of the contract for the furnishing of the doors and panels is “ that the defendant failed to show that there was any latent defect in the doors wlifen delivered.” In the finding respecting the trim, the language of the court is, “ and that defendant failed to prove the remaining counterclaims set forth in the answer.” Reference to-the answer shows that the pleader averred the facts constituting a defense by way of showing that the contract had not been fulfilled. *396■ The counterclaim in that connection consists of a claim to recover for the cost of replacing the defective material thus furnished, and the answer in terms pleads it both as a defense and a counterclaim. It seems-to be evident, therefore, that the court disposed of the^ease upon the, theory that the burden of proof was upon the defendant to establish that the plaintiff's had not fulfilled théir contract, .thus reversing the rule and adopting an erroneous one. A reference to - the opinion of the learned court also shows the same' erroneous view. Jt says : “ I do not think that the defendant has successfully shown that the blame and los^ should fall upon the plaintiffs.’- And again : “On the whole, I do not think that defendant xhas1 shown that the doors were improperly constructed or were imperfect when delivered.” It is, therefore, apparent- that the court devolved the burden of showing the non-perforinance of the contract upon the defendant, whereas the law devolved it upon the plaintiffs. And this reason is quite sufficient to call for a reversal of the judgment,
, In addition to this, it was clearly made to appear that the failure to furnish proper and suitable doors would entail a cost in replacing the same of a considerable amount, the proof on the part of' the plaintiffs tending to show that such cost would be in the neighborhood of $3,500, and upon the part of the defendant that it would cost something over $7,000. ■ Defects in work cannot be called inadvertent which re'quire such a sum to make it good. (Van Clief v. Van Vechten, 130 N. Y. 571; Mitchell v. Williams, 80 App. Div. 527.) This disparity is sufficient to show that the contract was not substantially performed.
If, however, as. is claimed, the findings can be construed as findings of complete performance, I am of opinion that they are overthrown by the clear Weight of evidence. That alb of the doors and panels split and will be required to be removed in order to make the rooms respectable in appearance is -undisputed. None of' them were free from tliése defects, and the manner in which they cracked and split was uniform upon all the floors and in all the rooms where they were used. The defects being open and apparent, the -issue presented' to' the court was, -what created the force which operated • to produce the result and who was responsible therefor ? Evidence was given upon the part of the defendant tending to show that the defect was in the failure to put into the doors and panels material *397fully kiln dried, and that the failure in this regard caused the interior wood to contract, and thus to- crack the panels and produce the other results. Evidence was also given tending to show that the doors were improperly glued and the material improperly placed. Upon the part of the plaintiffs, evidence was given tending to show that the doors when delivered were in good condition and complied with the terms of the contract, and the court so found; that the subsequent condition was produced by exposing them to dampness and, after being hung in the building, to intense heat; that by this process they absorbed moisture, and the heat caused contraction, which produced these' results..
. The only claim of moisture rested in proof of the laying of the mosaic and tesselated floor, wherein it was claimed that considerable water was used, and that during that process the doors absorbed the moisture. It appeared, however, from the testimony of the men in the building who laid the floor, that but a small quantity of water was applied thereto, about as much as would be necessary to be applied in scrubbing a'floor; and the court was of opinion as a final conclusion that dampness was to be inferred from the fact “ tliat the defendant found it necessary to put steam heat on during the hot months of August and September; ” that this would scarcely have been done had not the building been damp. It did not appear how hot it was in either of these two months in that year; and the evidence of the architect who caused the steam to be turned on is that it was in September. Ho other cause or reason'was assigned by the plaintiffs or by any one else than that the condition of the doors was produced by this dampness and by the heat applied. A record was kept, when the doors were -delivered, of the quantities that came and the number of workmen then employed about the building that were engaged in putting them up ; and so far as specific proof went upon this subject, the testimony fairly establishes that the doors were put in place almost immediately-after delivery. That the claimed dampness made but slight impression upon the court is apparent from its remarks near the'close of the proof, which expression of opinion evidently stopped further inquiry into this subject. The court said: “ I don’t' think there is anything in this question of dampness; the doors have been in that building long enough, if they were reasonably good doors, to stand it.” Ho *398. further proof was adduced upon this subject after this deliverance, by the court. Consequently, we are not able exactly to determine what consideration's induced the court to take a different view, aside from the suggestion of the turning on of the steam in August, which appears not to have been done.
Aside from mere oral proof, however, stand certain physical conditions which are much more important and satisfactory in the establishment of facts than oral statements .can possibly be.. All of these doors cracked and checked and otherwise fell apart iii a uniform manner. There was no difference in- them, save in slight degree. It is an affront 'to common sense to conclude upon- such facts that each door absorbed the same amount of moisture at the same time, and was subjected to. the same amount of heat at the same time; and yet such must be the conclusion if we attribute the condition of these doors to the absorption of moisture and the application of heat. The fact that they all cracked- alike is controlling evidence that the same infirmity practically existed in each door, and this result could only be obtained by the same kind of a defect in each. Manifestly, such condition could not be produced by the accidental absorption of moisture. Some of the doors had not even been placed where dampness could be absorbed, assuming that others might have been exposed thereto. The action of heat and moisture accidentally received or applied does not manifest itself in this uniform way. So that not only does the oral testimony in this case predominate in favor of the defendant’.s contention, but the physical condition's are conclusive of it. And when this is coupled with the fact that the burden of showing performance of the contract rested upon the plaintiffs, and that substantial performance only was found by the cqurt, it is clear that the plaintiffs failed to establish ' e • •$, 1 facts authorizing a recover} lor the doors and panels.
It follows-that the judgr'^ fit should be. reversed and a new trial , granted, with costs to the ¡ ipellant to abide the event.
"Van Brunt, P. J., and tg-raham, J., concurred; O’Brien and Laughlin, JJ., dissented.