The objection to the evidence given by the plaintiff, to show that the defendants consented that Saturdays should be counted in ascertaining the length of time the plaintiff taught the school, was placed upon the ground that it was not competent to show a variance of the performance of the contract to teach the school, under the allegations of the complaint.
The technical rule undoubtedly is, that under a complaint setting out a contract and averring its performance by the plaintiff, evidence in excuse for non-performance is not admissible. (Oakley agt. Morton, 1 Kern. 25.) But this rule is of very little consequence ; for the plaintiff may amend his complaint and then give the evidence. (Code, § 173 ; Dauchy agt. Tyler, 15 How. Pr. R. 399.) It is true, that he must submit to such terms “ as may be proper but terms are not often imposed, for they are seldom necessary in the furtherance of justice.
In this case no amendment of the complaint was necessary to entitle the plaintiff to give the evidence excusing him from opening the school on Saturdays. The complaint contains seven distinct claims or counts, three of which are similar in substance to the count of indebitatus assumpsit for work and labor, used prior to the Code of Procedure. That count always was sufficient to authorize a recovery for work and labor performed under a contract not under seal, unless the party performing the work and labor had failed to fulfill the contract. (4 Wend. 285; 11 id. 479; 22 *103id. 576; 1 Cow. Tr. 2d ed. 124; 2 id. 635 and 1128.) This court held, in Farron agt. Sherwood (17 N. Y. R. 227), that the Code has not changed the former rule of pleading; that a party who has wholly performed a special contract on his part may count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially upon the agreement. The same rule was held in the following cases: Allen agt. Patterson (3 Seld. 476) ; Keteltas agt. Myers (19 N. Y. R. 231); Moffet agt. Sackett (18 id. 522).
The plaintiff taught the school thirteen weeks for the first three months, and twenty-six weeks for the last six months. This was time enough to make the two terms, construing the word month to mean a calendar and not a lunar month, as the statute seems to require. (1 R. S. 606, § 4.) The fact that the plaintiff’s wife was absent Monday mornings washing till ten or eleven o’clock in the forenoon, and a few days while sick, and that the plaintiff himself was absent one day attending a Buchanan mass meeting, and two days before the board of supervisors as a candidate for county commissioner of schools, his wife keeping the school in his absence, was not a substantial breach, by the plaintiff, of the contract to teach either three months or six. This was a trifling matter. The school was kept during the time either the plaintiff-or his wife was absent. Both were not away at the same time, and the attention of the judge was not particularly called to these absences at the trial; nor was it shown during which term they occurred. I am therefore of the opinion the judge was right in holding that the plaintiff performed the contracts on his part.
The defendants were the only trustees of the school district at the time the action was commenced; and there was no evidence given that Thomas Richardson had become a third trustee at the time of the- trial, and it was not conceded by the plaintiff that he was such trustee.
*104The complaint showed upon the face thereof that the action was.brought against only two trustees. But the defendants did not demur to it on that ground, or object in their answer on that ground to the plaintiff maintaining the action. The objection that a third trustee should have been made a defendant was therefore waived. (Code, § 144 ; id. 147.)
The first offer of evidence by the defendants embraced matters which were clearly inadmissible. That' the plaintiff stated to others, while circulating the agreement in regard to the number of scholars, they need only to sign and he would clear them from liability for signing, and only desired their names so as to induce others to sign, was matter that did not concern the defendants. Every person who signed that agreement bound himself, if at all, according to the terms of it. But a sufficient number of scholars was not subscribed for, to make it operative. The representations therefore made to the persons who signed it were wholly immaterial to the defendants. And the rule is, if an offer contains any matter not admissible as evidence, the whole may be rejected.
The second offer contained the proposition that it was a condition of the contract for the last six months that the plaintiff should keep up the school to eighty scholars for the first three months. The contract for the last six months was in writing, and no such condition could be engrafted upon it by parol evidence.
The third and last offer contained this matter, namely: That each of the trustees, at the end of the plaintiff's first month, offered him payment for the time taught and fifty dollars besides, if he would discontinue the school. This certainly was not legal evidence against the plaintiff.
It is unnecessary to determine whether any portion of the matter contained in the three offers made by the defendants would have, been admissible, if the same had been-separately offered; for each offer, as we have seen, con*105tained matter which was not legal evidence against the plaintiff. And this is a sufficient reason for sustaining the decisions of the judge rejecting the whole of each offer.
I will add, that it does not appear by the case, nor was there any offer to prove, that the defendants did not know the number of scholars actually subscribed for upon the agreement of April 20th, 1856, at the time they made each of the contracts with the plaintiff to teach the school; and without ignorance on their part respecting the number of scholars actually subscribed for, no fraud could have been practiced on them by any false representations of the plain-, tiff as to the number so subscribed for.
My conclusion is, that no error was committed on the trial, and that the judgment of the supreme court in favor of the plaintiff should be affirmed, with costs.
Denio, Ch. J., Marvin, Wright, Davies, Rosekrans and Emott concurred.
Selden, J., read an opinion for reversing the judgment and granting a new trial, in which he held that some of the evidence offered by defendants’ counsel was improperly excluded. .
Judgment affirmed, with costs.