Present — Ingalls, Hogeboom and Peckham, JJ.
By the Court
Peckham, J.The full statement of this ease is its own argument. The plaintiffs, as assignees of a contract with defendant, agreed to do certain things, in a certain time, and to proceed with the work in a certain manner. If they failed so to proceed, the contract, after prescribed notice, might be declared void by the defendant. It was further provided, that if any money was due the plaintiffs when the contract should be declared void, that no part thereof should be paid until the contract should be completed; and if, in completing the work, the cost thereof should be increased over the contract price, then the sum so due, should be applied to the payment of such increase.
The plaintiffs did not perform this contract; confessedly failed. It was declared abandoned and void. This was acquiesced in by the plaintiffs. The contract was then completed by defendant, at a cost beyond the contract price, largely exceeding the amount due the plaintiffs when the contract was declared void. Then, by the plain, clear terms of the contract, the plaintiffs had no right of action.
It is insisted that the report is right, because the sum *262reported due, appeared, by the defendant’s books to be due to the plaintiffs.
That sum was due to them when the contract was declared void; that is, there was that balance in their favor at that time.
But they were bound to fulfil, or, when the time for fulfillment had expired, and there had been no extension and no completion there could be no recovery.
Further, in this case, it was expressly provided that this balance should be applied to' the payment of any excess of cost in completing the contract over the contract price.
The amount of the balance was some $400, and the amount expended by defendant to complete the. contract, over and in excess of the contract price, was over $4,000
It is alsodnsisted that the defendant waived the forfeiture of the contract and the benefit of its provisions by paying money after the forfeiture had occurred. But the defendant paid no money on the contract after it was declared void, even if that would, under the circumstances of this case, revive its provisions. Had the defendant paid money on the contact' after it was declared void, and the plaintiffs had then insisted upon going on with and completing the contract, it would have presented a very different case, but no such case is heie.
The plaintiffs also urge that this contract is very severe and highly penal, and should be very liberally construed with a view to right and justice. To such a construction we agree. But we cannot adopt a construction that nullifies its provisions, as the plaintiffs’ counsel does not claim or pretend that the contract is void or invalid in any of its provisions.
If fairly made (and there is no pretense to the contrary), it must be fairly enforced. There is ■ abundant authority for upholding such contracts, if any were needed. (Hennessey v. Farrell, 4 Cush., 267; Faunce v. Burke, 16 Penn. State R.; 4 Harris, 478, 479.)
As to the non-performance of the whole contract defeating a recovery, see Smith v. Brady (17 N. Y., 173).
Judgment reversed and a new trial ordered, costs to abide the event.