On the argument of this appeal, the defendant urged, as ground for reversing the judgment, that the referee erred in rejecting the evidence given by the defendant (appellant); that the performance by the plaintiff was defective, in this, that his work was inferior in quality to the work required by the contract mentioned in the pleadings ; the referee having, on- the hearing, received such evidence, notwithstanding the plaintiff’s objection, and subsequently, after the argument of the case, excluded it from his consideration.
The plaintiff in his complaint alleges an indebtedness by the defendant to him for work, labor and services of the plaintiff for him, and for materials, &c., supplied by him in and about such work, &c., for the defendant, as follows: $425 for the balance due to him on a contract between them, dated February 26, 1850, (describing it,) and $162 50 for extra work and services not included in the said contract, and done and performed by the plaintiff in and about, &c.
The defendant in his answer denies that he is indebted to the plaintiff in the sum of $587 50, as set forth in the complaint, and also denies that the sum of $425 is due to plaintiff as a balance upon a contract, as set forth in the complaint, or that there is due to him for extra work and services and materials, the sum of $162 50, as set forth in the complaint.
*267Had the answer of the defendant stopped here, and the plaintiff had gone to trial upon the issue thus created, it would be difficult to say that the issue did not open to both parties the broadest grounds of claim and defence. The plaintiff might, perhaps, in such case, be held to prove all the facts necessary to establish a balance, that is, the making of a contract; the full performance of it on his part, or circumstances excusing an exact performance, as well as the doing of the extra work, furnishing materials, &c. And the defendant, on the other hand, might, perhaps, have been permitted to show that the contract had not been performed, in any particulars, or any other facts, in denial that any balance was due on such contract.
I think the code never was intended to sanction such looseness in pleadings, and that the complaint was grossly defective in not setting out the facts upon which the alleged balance arose. In substance the plaintiff declared upon a special contract, and he should have set out its provisions either in form or legal effect, and alleged that he had performed them, or have stated the facts which warranted a departure therefrom, if not performed literally. Had he done this, the defendant must have stated the specific facts upon which his denial of any balance due rested, as non-performance in point of time, quality of the work, &c., and the parties would have gone to trial upon issues that were single, intelligible, and which apprised them of the precise grounds of claim and defence ; and I am by no means satisfied that where a plaintiff declares generally and loosely for “ a balance due him upon a "contract,” and goes to tidal upon a mere denial that any balance is “ due to him upon a contract,” the defendant may not give in evidence any facts showing that there is no balance "due, whether they consist in the non-performance by the plaintiff, or any other facts extinguishing the claim "to any balance. The answer in such case would, I incline to think, be as good as the complaint, and neither of them ought to be sustained under any system of pleading, old or new. They are little if any better than no pleadings, and so long as the object of pleading is to disclose the real grounds of claim and defence, and to bring *268the parties to an issue upon the real matters in dispute between them, such generality in pleading ought not to be allowed. The setting out of the contract and alleging performance in the replication does not help the complaint. It contains no new matter not necessary to be proved to establish the allegations in the complaint itself, if the defendant had rested upon a simple denial of the facts therein stated. But the defendant did not rest his case on a denial of the plaintiff’s allegation that he was indebted for a balance due to the plaintiff on the contract. He qualified his denial by alleging the specific grounds upon which it rested. In substance, he says, that there is no balance due, beccmse the plaintiff did not perform the work within the times specified in the contract, and he not only denies that there is any balance due/or that reason, but claims to recoup his damages sustained by the delay. He thus distinctly discloses the ground of his defence—failure of the plaintiff to perform in time. I think he was properly confined to thisvground by the referee.
He chose his position. He tendered an issue on the question of the time of performance, and he was hound by the issue he tendered. There is no pretence in the answer that the work had not been done, or that its quality did not correspond with the contract, nor that the contract was not performed in every particular save only in time, certain patching excepted, for which an allowance was made to the defendant on the trial, and which is not involved in the present appeal.
Having thus chosen his ground of defence, and narrowed down the issue to a single point, he could not depart from it on the trial, and prove a breach of the contract of an entirely different nature, viz., that the plaintiff’s performance was itself defective by reason of the bad quality of the work and materials. No issue was formed between the parties on that question, and no such issue was therefore before the referee for trial. The affirmative allegation in the replication, that the plaintiff had done and performed all things, &c., did not enlarge the ground of defence. So far as this allegation imported that he had performed in particulars, the non-performance of which *269was not alleged in the answer, it was irresponsive to the answer and unnecessary. It was not new matter, admitting the answer and avoiding it; nor did it change the issue at all. The defendant was met upon the very ground of contest selected by himself, and he has no reason to complain that he was held to his own choice. But it is urged that the referee having in fact received this evidence on the hearing, erred in excluding it from his consideration after the cause was submitted. However this might be viewed on an application to amend, as an excuse for not asking an amendment before the final submission of the cause to the referee, I do not perceive that there was any error in law committed. The evidence had been offered by the defendant, and had been improperly received; it should have been rejected, and it was the duty of the referee to strike it out of the case at any stage of the trial. Its temporary reception by the referee did not in any manner prejudice the defendant; it did not prevent his giving other evidence to the same point, for no evidence to the same point would have been proper. There would be some reason for complaint, if, after the testimony was closed, the referee excluded evidence from his consideration upon the ground that the form of a question was objectionable, or that it was not the best evidence which the nature of the case admitted. In such case the party would have lost the opportunity of reforming his question, or supplying the best evidence, and so would suffer wrong. Here he is in no worse condition than he would be if the referee had rejected the evidence when first offered.
I do not discover in this any reason for reversing the judgment.
I find in the case several exceptions to the ruling of the referee upon the admissibility of evidence. But they appear for the most part to be embraced in the single question above considered; and although noticed in the printed points, no argument was offered on the hearing of the appeal in support of the exceptions.
In connection with the argument of the appeal, the defendant’s counsel submitted a motion for leave to amend the *270answer, by alleging non-performance of the contract in respect to the quality of the work and materials, so as to bring the rejected testimony within the issues thus to be raised. The evidence having at first been received by the referee, the whole merits of the proposed defence appear to have been fully' developed by testimony on both sides. Had the evidence been rejected when offered, no doubt the defendant would have applied to the court for leave to amend, before the case was submitted, and he may have been misled by the ruling of the referee into an undue confidence that his answer was sufficient. We are, upon a perusal'of the evidence, by no means satisfied that full justice between the parties has been done; and we are, therefore, much inclined to think, that if without unnecessary delay, the defendant, on the coming in of the report, had applied to the special term for leave to amend upon those grounds, he would have obtained leave upon such terms as were reasonable.
But we are now sitting as a court of appeal, to review what has been done below, not to hear original motions for orders properly to be obtained below. We are permitted to disregard mere formal defects not affecting the merits, but we have, I think, no jurisdiction on the appeal, after judgment, to order amendments changing the nature of the defence, rendering a new trial necessary, and thereupon to reverse the judgment as if for error. Giving the largest construction to our powers on such an appeal, it seems to me that we can only do in such a case what the court, at special term, or the referee ought to have done—not do what they have never refused nor been asked to do. I do not mean to intimate that the referee in this case could have allowed an amendment, but that the application should have been made at the special term, and that the general and liberal power of amendment given by the code is not to be exercised by us to the extent here sought, while sitting as an appellate tribunal to review the judgment. Though not fully satisfied with the result upon the whole merits as disclosed by the evidence, we feel constrained to affirm the judgment.
Judgment affirmed.