Howell testified that he objected to giving the certificate, alleging he had no authority, and that the wall was not right, but upon the promise of Goar that he would make it all satisfactory, he signed it. This has nothing to do with the question of estoppel, because the money was paid before this was known by the defendant, if it- ever was known to it.
But, under the facts as disclosed, I am of opinion that, there was no estoppel. It should, perhaps, be stated that the last payment on the contract was made to Goar by the defendant, upon an indemnity by him to the company, *449against any claim by the plaintiff. Assuming that Howell was authorized to give the certificate, still the defendant would not have been prejudiced by allowing the truth to be proved. It had money on hand thereafter to be earned, and that was earned, by the contractor, Coar, sufficient, and much more than sufficient, to indemnify itself against any failure of the contractor to complete his contract, in that respect. If not prejudiced by the truth, the defendant could not set up an estoppel. (See Brown v. Bowen, 30 N. Y. Rep. 541.) If the plaintiff had notified the defendant, before this payment upon the certificate had been made, that it was unauthorized and' untrue, it will not be pretended that there was any estoppel. Yet, legally, the defendant is in no different position. There was no certificate provided for in the contract, between the defendant and its contractor, and although it advanced money, which, perhaps, it would not have advanced without it, yet enough was still unpaid to indemnify the defendant against this claim—unpaid, too, after notice of this alleged damage. The defendant, therefore, cannot claim to have been damnified by this certificate—at least in such a way as to estop the plaintiff from showing the truth. The advance did not injure, and there was no provision that such a certificate should be conclusive, even if that would change the case.
There was also a submission by the court to the jury, as to whether a reasonable time had elapsed for the completion of the contract, before the plaintiff took possession of the buildings. I can find no evidence authorizing the submission of any such question. The repairs commenced on the 14th of June, and were discontinued about the 8th of September, when it was alleged by the contractor that they were completed, and on the 14th of September the plaintiff took possession. Ho proof was offered, or given, that the contractor had not had a reasonable time to com*450píete the repairs. His claim, was that he had, as he claimed to have finished them on the 8th, and the plaintiff did not take possession until six days thereafter. I can see no authority for saying to the jury, that if a reasonable time had not elapsed, then he had no right to do any thing which would exclude Mr. Coar from the performance of the work. There was no evidence upon which to base any such0 submission. The jury may have found for the defendant, without reference to these questions, but this court cannot see that they would have found so, had they been otherwise instructed upon these points.
[New York General Term, November 2, 1868.For these reasons, I think the judgment should be reversed, and a new trial ordered; costs to abide the event.
Ingraham, Mallín and PecJcham, Justices.]