The parties must be held concluded by the manner in which' they tried the cause. Neither side asked that the cause be submitted to the jury; on the contrary, both requested the direction of a verdict; whereupon the justice directed one in favor of the defendant. By asking for the direction the parties virtually consented to the determination by the justice of the questions involved, as if the trial had been without a jury. Kirtz v. Peck, 113 N. Y. 223, 226; Thompson v. Simpson, 128 id. 270; Rogers, v. Hardy, 14 Misc. Rep. 220.
In order to reach the result arrived at by him the justice must have found that in the latter part of October, 1895, the plaintiff, who is a tailor, received from the defendant,- a manufacturer of ready-made clothing, sixty-six cut garments to put together; that at 10 o’clock a. m., on the Friday succeeding the delivery to the plaintiff, he had thirty garments completed, and at 6 o’clock p. m., the same day, twenty-six-more were ready for delivery; that he agreed to send the thirty to the defendant on Friday, and the remainder on the day following, which -promise he did not perform, although the defendant, who was in a hurry for the goods, relied upon its performance; and that on Saturday night a fire occurred at the plain*390tiff’s premises, • resulting in the complete destruction of the garments. ■
The action is to recover for the work done upon the completed garments, as for services rendered by the plaintiff at the instance and request of the defendant. The defendant was to pay for the work only after the ¡sixty-six garments were returned, to him in a completed state with the result of the plaintiff’s labor upon them. Not having performed this duty the plaintiff has no cause of action, unless the destruction of the subject-matter by fire gives him' one.
As the material belonged to the defendant, the contract between him and the plaintiff was one of bailment, and of that class technically called locatio operis faciendi, applicable “to the hire of tailors to make clothes, of jewelers to set gems,. and of watchmakers to repair watches.” Story on Bail., § 421. In such a case, if, while the work is doing on a. thing belonging to the employer, the thing perishes by internal defect or inevitable accident, without any default of the workman, the latter is entitled to compensation to the extent of his labor actually performed on it, unless his contract import a different obligation; for the maxim is res perit domino. Id., § 426; 2 Kent’s Com. 590, 591; Schouler’s Bail., § 111. The rule is said to be .(•!) if the work is independent of any materials or property of the employer, the manufacturer has the risk, and the unfinished work perishes to him; (2) if the bailee is employed in working up the materials or adding his labor to the property of the employer, the risk is with the owner of the thing with which the labor is incorporated. Id.; 2 Parsons’ Cont. (6th ed.) 130, 131; Archer v. McDonald, 36 Hun, 194; McConihee v. R. R. Co., 20 N. Y. 495; Tompkins v. Dudley, 25 id. 272; Niblo v. Binsse, 3 Abb. Ct. App. Dec. 375.
“ But,” observes S.chouler in the section of his work before referred to, “ local usage or special contract might create exceptions; for were it mutually understood that the workman should perform by the job for some stipulated price, payable only upon completion óf the sendee, the civil law and our own would, in case of a calamity for which neither party was to blame, make the thing perish to the master, and the service of the workman; unless, indeed, the calamity occurred after the job was actually finished.”
Although the material perished by inevitable accident, and -was, therefore, incapable of delivery, the plaintiff was bound to establish a right to be paid for the work actually done, without completing the entire job. Assuming, but not deciding, .that he *391succeeded in doing this, the question still remains whether he was guilty of any default without which the loss would not have occurred. The evidence sufficiently warrants the finding that the plaintiff agreed to send the thirty garments to the defendant on Friday, and the remainder on the day following, and that he neglected this duty, although the defendant relied upon its performance.
This was a special lot of goods; it is conceded the defendant was in a hurry for them, and that he was insisting upon their speedy completion, as he required them in his business; hence the plaintiff’s promise to send them in, which meant that he would attend to their delivery. According to the testimony of the defendant, the plaintiff did not claim that he' omitted to send the goods because he expected the defendant, as was the custom, to send the expressman .for them, thus putting the fault upon the defendant; but he offered excuses which imply neglect upon his own part, first, want of buttons, then want of covers; and when pressed after the fire for some explanation why the goods had not been sent in ' according to his promise, he said: “ I couldn’t send them in because the straps were not finished.” So that while the defendant persistently laid the blame upon the plaintiff, the latter, instead of charging, the defendant with neglect, kept offering excuses for his own delinquency, which in their nature repel any inference that the defendant was at fault. This feature may, and probably did, have weight in influencing the finding in favor of the defendant, and it cannot be said to be without support-in the evidence.
If the plaintiff had performed his agreement and sent in the completed garments, the loss would not have occurred; hence it happened by his default, and he thereby lost not only the right to compensation, but may have become liable to the defendant.for the loss of the material as the proximate consequence of such default. See Faulkner v. Hart, 82 N. Y. 413.
The defendant pleaded a counterclaim-of $333.33 for the -loss of his material, but this was disallowed by the justice; and as the defendant has not appealed, an affirmance of the judgment in his favor will be an effectual adjudication of. all cliff ar enees between the parties.
Judgment affirmed, with costs.
Daly, P. J., and Bischoff, J., concur.
Judgment affirmed, with costs.