This action is brought to recover the contract price for the making of certain alterations on defendants premises, and for the reasonable value of certain so-called extra work.
Although a number of times there was some discussion between counsel, or colloquy with the court, concerning the difference between strict performance, on which plaintiff claims to have based his action, and substantial performance, and although there appears here and there in the record some apparently trifling items for which it is possible that an allowance should have been made to the defendant on the doctrine of substantial performance, that distinction, as analyzed in Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238, was clearly presented to the jury, and the issue decided in favor of plaintiff.
Appellant really urges that the verdict is against the weight of evidence in that the evidence shows that plaintiff has failed to perform his contract in substantial particulars, and that for such failure to perform as defined in East Hampton Lumber & Coal Co. v. Worthington, 186 N. Y. 407, 412, 79 N. E. 323, the complaint should have been dismissed. An examination of the record, however, convinces me that the claim is unfounded. It depends largely upon the jury’s belief in respect of evidence that is directly contradictory, offered on behalf of both sides respectively, and on the interpretation of the plans and *950specifications and the method in which the work was carried out by the plaintiff in attempted compliance therewith.
Appellant’s other contention is that plaintiff, without pleading it, was allowed to prove a waiver of the performance of certain particulars of his contract. There are one of two unimportant items of the evidence which might be so construed, but that evidence was perfectly relevant, material, and competent to show defendant’s satisfaction with the work from time to time, thereby conforming the plaintiff’s proof of performance, and the court distinctly charged that no waiver was claimed.
A careful review of the record convinces me that defendant’s counsel had overlooked a clause in the contract which expressly provided that "alterations in, additions to, or deviation or omission from, the work contracted for” might be made during its progress without annulling or invalidating the contract, and that plaintiff’s testimony occasionally merely proved such alterations as required by the defendant or his architect, entirely within the terms of the agreement. When this clause of the contract was called to the attention of defendant’s counsel, he asked leave to withdraw a juror on the ground of surprise, which motion was properly denied. This is not a case like Schultze v. Goodstein, 180 N. Y. 251, 73 N. E. 21, wherein the contract itself was departed from, but one in which the contract expressly provided for occasional alterations and deviations; and when the same were made, they were made in pursuance of the contract. When the plaintiff had proved that he did the work in its changed form, he proved compliance with his contract.
I think that this is a case in which interest was properly allowed.
I find no error in the record, and I am for affirmance of the judgment with costs to respondent.
PAGE, J., concurs.