This is an action to foreclose a mechanic’s lien. The complaint alleged that á balance of 2,971.60 was due the plaintiffs under *399a contract for furnishing the interior woodwork of defendant’s house. The answer denied performance upon the part of the plaintiffs, alleged that the contract was procured hy fraud, and set up five counterclaims. At the trial the defense of fraud w,as apparently abandoned, two of the’counterclaims were admitted by the plaintiffs, and the third was allowed by the court for the full amount claimed. Judgment was rendered in favor of the plaintiffs for $1,718.50 together with interest, that being the amount demanded in the complaint, less the three counterclaims established. From that judgment the defendant appeals, and the only questions to be • determined by us relate as conceded in appellant’s brief to the decision of the court in refusing to- allow the defendant one of the remaining counterclaims which is designated as the third.
The allegations of the complaint are that the “ plaintiffs fully complied with all the terms and conditions of said contract on their part, and fully furnished and delivered all the materials thereunder required to be by them furnished and delivered,” and that the “ defendant ratified any departure, from the contract of these plaintiffs that occurred, if any,, and waived any claim that existed or might exist by reason of variances between the specifications and plans and contract, and the materials furnished by plaintiffs.” The contract provided that all -the lumber to be used should “be thoroughly kiln dried according to drawings and specifications made by ” the architect, and that the work should be done “ in a first class manner.”
The allegations of the answer in setting up the third counterclaim are to the effect that the woodwork furnished by the plaintiffs was not properly kiln dried, and that the “work of drying, preparing, gluing and putting together said woodwork was not done in a first class manner as in and by said contract agreed, but on the contrary said work was done in such, a negligent, careless and unworkmanlike manner, that after said woodwork had been delivered and placed in the building named in said Contract, the wood in the doors furnished under said contract separated, Cracked and warped, and the rails of .said doors separated from the stiles, so that said doors failed to retain their proper- position in said building, and have thereby become and áre worthless and not at all fit for the purposes for which they were designed.” It is further alleged that upon discov*400ering’ such defects the defendant notified the plaintiffs that the doors were not according to contract and demanded- that -they should be replaced with new. doors; that the plaintiffs had failed to remedy the defects; and that defendant would be obliged to replace said doors ■ at his own expense, which Was estimated at over $8,000, and this' amounf he sought to counterclaim. - , 1
It will be observed that by these allegations the defendant merely denies that the plaintiffs performed then; part of the contract in '■ relation to the 'doors which they had furnished.
Upon the trial it was established that over five hundred doors were .' supplied by the plaintiffs under their contract. Each of- these doors had four panels; the lower two being of solid birch, the upper two made of five layers of wood ; the interior core of pine about three-eighths of. an inch thick with the, grain running crosswise ; to each side of this was affixed a layer .of white wood about one-eighth of an. inch thick with the grain running from the top to the bottom of the panel; and on the outside of these -layers was a birch veneeri from one thirty-second to oñe-sixteenth of an inch thick with the grain running from top to bottom. Ho evidence was introduced tending to show that the. general plan of construction as above described was not in conformity with the requirements of the drawings and plans of the architect, and as these plans are riot before US we must assume that the learned trial judge is correct in finding, as he did, that in adopting this-plan of construction the plaintiffs conformed to the contract. The doors were apparently all right when they were received from the plaintiffs and when they were . subsequently hung by the defendant in the building; but after they had been in place for some months the upper panels began to check and crack and the frames to shrink. These defects continued^ to increase in size and number until finally the condition of -the . doors became so bad that, as defendant contends, they were practically unfit for use. . -' -
The defective condition of the doors was admitted, the disputed' question upon the trial being as to the cause of it. The. plaintiffs contended that the'imperfections, which.did not appear 'until some months after-the doors had been placed in the. building, were, not caused by any defect in material or workmanship, but resulted from the negligence of, the defendant, in subjecting the doors, after they *401came into his possession, to alternate dampness and great heat, causing the wood to swell and then suddenly contract, thus cracking and checking the veneer. The defendant, on the other hand, contended that the cracking was caused by the failure of the plaintiffs to use wood that had been properly kiln dried and by improper workmanship in fastening the different layers of wood together.
Evidence was offered by each party which tended to support their respective claims. From the testimony of plaintiffs’ witnesses it appeared that after the doors had been delivered to the defendant they were left by him for a time in a portion of the building which was damp on account of mosaic tile work and plastering being done there, and after they had been exposed to this dampness they were hung in their respective places and then subjected to extreme heat when the steam was turned on in the building to dry it out. Witnesses qualified as experts were called by the plaintiffs, who testified that in their opinion the defects in the doors were caused by their being thus subjected alternately to moisture and to heat; and the plaintiffs’ superintendent, under whose supervision the work under this contract was performed, testified that it was “ a first class job,” and that the wood psed was thoroughly kiln dried.
The experts called by the defendant had, as we might expect, a different opinion as to the cause of the defects. They testified that the interior layers of wood in the panels had been improperly kiln dried; that the method adopted by the plaintiffs of gluing and pressing together at one time all five layers of wood was not first class workmanship, but that the proper way of manufacturing doors of this kind was to glue and press the three interior layers first, and permit them to thoroughly dry out before gluing on the two outside layers of veneer; also, that it was not first class workmanship to have the grain of the outside veneer run in the same direction as that of the wood immediately beneath. They testified that in their opinion the cracks and checks were caused by the improperly dried wood used, and by the improper workmanship as above mentioned. This conflicting testimony presented a question of fact for the trial court to determine, and he states the situation in his opinion as follows: “ The evidence is clear that the doors appeared to be all right when delivered, and there is positive *402affirmative they carefully constructed, strict conformity. with the requirements of the contract. , The theory that the panels split' and shrunk because the wood had not been properly kiln dried has no positive evidence to support it. and rests wholly upon conjecture and the attempted reasoning of experts from effect to cause. The result of their evidence is that the defects ■ which first disclosed themselve^ in December, about four months "-.after the doors were delivered, might and 'probably would have resulted from a lack of proper kiln drying before manufacture. But it also appeared that the same defects might be found if the doors had been properly constructed in the first' place, and. after ■delivery subjected .to altérnate dampness and great heat. There was some evidence to show that they had been so subjected. The ' defendant undoubtedly sought to show that there was ho consider-‘ able dampness in the bnildipg at thq time of and after the delivery, but" it is.significant, that the defendant found it necessary^ to put . steam heat on during the hot months of August and September, which he would, scarcely have done unless the interior of the building had been pretty damp.”
' We think this correctly summarizes the situation at the close of the’Case, and 'the conclusion reached by the court, that the evidence sh.qw.ed a substantial performance by the plaintiffs, cannot be disturbed, by us unless it can. be seen that .in reaching that conclusion the court found against the weight of evidence or proceeded upon an erroneous theory as to-the burden of proof. As already pointed out, the plaintiffs based their right to recover upon the theory that they had either.Wholly or substantially performed their part- of the contract; the evidence shows that there Was not a full performance. . This is not claimed by the plaintiffs upon the present appeal,, and the court has based its.decision not upon a-full, but upon a substan- ' tial -performance.- As said in the case of Spence v. Ham (163 N. Y. 220, 225): “ Substantial .performance is performance, except as- to unsubstantial omissions - with compensation therefor. When the omission is slight and unintentional in order to prevent the hardship 1 of a failure to recover even for that which was well done, co'rapen- ’ - sation is substituted pro tanto for performance. This is the modern rule adopted upon the theory that the parties are presumed to have impliedly agreed- to do what was reasonable nnde.r all the circurn*403stances with (reference to the subject of performance.” But the burden of. showing that the omissions, if any there be, were immaterial, rests upon the plaintiff. Not only must he establish this before he can recover, but according to the case last cited, he must also show the amount which it would cost to make the omissions good, so that such sum can be deducted from the contract price ai/d á recovery had for the balance only.
. In the present case, therefore, before the plaintiffs’ cause of action was established it was necessary for them to show at least that the wood used in the doors was properly kiln dried as required by the contract, and that the work was done in a first class manner. The burden of proving these things rested upon them, and it seems to us that a fair reading of the judge’s findings shows that he required -the plaintiffs to bear this burden. These findings in so far as they relate.to this subject are as follows:
“ V. That plaintiffs substantially performed their said contract: and that'the defects in the materials furnished were inadvertent and: not wilful on the part of the plaintiffs.”
“XIV. That the doors furnished by plaintiffs were according to contract when delivered, and were carefully constructed in conformity to the requirements of the contract, and that the defendant failed to show that there was any latent defect in the doors when delivered.
“ XV. That the weight of evidence in this action sustains the contentions of the plaintiffs as to the matters of fad hereinbefore found in their favor.”
The appellant contends that from the last clause of the 14th finding above quoted, to wit, “that the defendant'failed to show, that there was any latent defect in the doors when delivered,” it appears that the court placed upon the defendant, instead of upon the plaintiffs, the burden of proving that improper materials were used and that the work was not first class. We do not think that taking the finding as a whole it is susceptible of such interpretation. The finding is that the doors were carefully constructed in conformity to the requirements of the contract; that is, that the wood was properly kiln dried and the work was first class. The succeeding finding is that the weight of evidence sustains the contention of the plaintiffs as to that and other questions of fact. This, we think, *404clearly shows .that the court regarded it as essential that-the-,plain tiffs should sustain the bintden of proving a compliance-with the contract in the particulars mentioned, and that he found that they had sustained that burden. - For us to determine otherwise, we would have to take the particular clause criticised away from its context, and by reading it alone, give to it a meaning in^conflict with the.findings as a whole. As already said, we think the findings show that the -court proceeded upon :a proper theory, as to the burden of proof, by placing' that burden upon the plaintiffs,- and that his judgment as rendered is not- against the weight of evidence. I do not. agree, therefore, with the views expressed by the majority of the court, thinking, as I do, -that, the' judgment should be afñrméd, with -costs. ' ■
Laughlin, J., concurred.
Judgment reversed, new trial granted, costs to appellant to abide event.