Nichols v. Scranton Steel Co. the whole merits of the case having been fully given by both sides, it becomes obvious that the defendant has in fact had its day in court upon all the facts in the case, and the objection it now makes to the pleading is the purest kind of technicality, and should not prevail unless some well settled rule requires us to give it effect. We think there is no such rule. The defendant alleges that the amendment allowed by the referee introduced an entirely different and new cause of action, and changed the action from what was in the nature of an action at law into a suit in equity to reform a contract. This assertion on the part of defendant's counsel requires the statement of one or two additional facts. It will be seen that in the modification agreement made July, 1890, where, towards the end thereof, provision is made for a determination of what abatement, if any, may *480] be made to *defendant, the term "market price" is used as the price upon which the question of abatement is to be set tled. according to the provision of the contract of December, 1889. This proves no different and separate cause of action. *It is in truth an amplification of [*481 the original complaint and of the cause of action therein set forth, and an allegation of facts which go to show that the plaintiff is entitled by law to recover upon the cause of action first set up. There is no reason why such an amendment should not be permitted, and we think it is not in violation of the Code prohibiting on the trial amendments of a nature to substantially change the cause of action, or defense. Upon this question of pleading we are of opinion that no ground is presented for a new trial. A second ground for a reversal is based upon the allegation that there is no sufficient evidence upon which to base the conclusion of the referee that the parties to this contract ever reformed it or consented to the change of the terms thereof from "market” to "contract" price, as already stated, and that without such reformation no cause of action was proved. It is also maintained that if the president of the defendant did consent to this alteration of the contract, he had no power to thus bind the defendant. The evidence in our judgment is ample upon which to base this finding of the referee. It is unnecessary to set it forth or to allude to it in detail. We have read it, and we think there is but one proper conclusion to draw from it. As to the claim that the president had no power to alter the contract, we think the case shows a plain answer. The complaint, as amended, contained an allegation that this term, "market price," was inserted by mutual mistake instead of the term "contract price,” as intended by all parties, and that thereafter, on the 3d of February, 1891, the agreement was duly corrected by the consent of all parties by chang. ing the words "market price" to "contract price." Evidence to support this allegation of mutual mistake and a mutual agreement and consent to rectify it was given on the trial, and the fact of such agreement was found by the referee. The counsel for defendant is mistaken in his supposition that In the first place he was the officer with the amended complaint contains any prayer whom alone all the negotiations had been had to reform the instrument, and the referee which resulted in the execution of both condoes not reform it, but takes the contract as tracts. The case shows he was in substance the parties themselves had reformed it and the managing and controlling man of the as they admitted it to be. So there was no company defendant, and that he was present exercise of the powers of a court of equity to as the manager and representative of defendreform an instrument, and no application for ant on the occasion of the arbitration, and its exercise was made by the amended com- at which time the mistake was rectified, and plaint. The action remained as it had been, he was clothed with all the powers a manager one at law. The simple question then arises of the business and a representative of the whether in proving that the plaintiff's as- company would be supposed to have. When signor had in all things complied with the the attention of the parties was drawn to the terms of the modified contract, and that pur-language of the contract, and when the claim suant to its provisions an arbitration was was made that it was a mistake and that in had at which it was determined that no reality no such contract was ever made, the abatement should be made from the original president and general manager and [*482 contract price, the plaintiff was proving an representative of the defendant acknowledges entirely different cause of action from that the fact and consents to the change so that which was set out in the complaint. the truth may be set forth. This is not makUnder the amended complaint the demanding a new contract, nor is it any modification for judgment was substantially the same as of an old one. In truth there had never been in the original, and based upon the same con- any such contract entered into between the tract price for the same amount of iron de-parties, and there was nothing but a consent livered, at the same times, and for which that the actual contract that had been enpayments had been made in the same amounts. There were, however, certain additional facts set up in the amended complaint, the effect of which would show that the July contract set up by defendant as a defense to the suit did in reality furnish no defense, but permitted the plaintiff to recover tered into should appear by a proper amendment to the writing which evidenced the contract. It was a matter within the knowledge of this officer of defendant, who gave the consent, as it was he who negotiated and executed the contract itself which was to be reformed; and we have no doubt that in the Nichols v. Scranton Steel Co. light of all these facts he had the power to give the consent which the referee finds that he did give. tion to suppose that he was going to abide by any such decision as that. He said something about what he had lost by the contract, and that it was entirely out of the question that he was going to lose so much as would be contemplated in this decision of the arbi trator, and that the company would not trouble itself to give any more notes. SubseMarch the plaintiff's assignor wrote a letter to defendant in which he said that, failing to receive remittances, he would understand defendant as declining to carry out its agree. ment. Again about the 11th of March he wrote in about the same tenor. In the view taken of this subject we do not lay any stress upon either letter as rendering it necessary for defendant's agents to answer it at the peril of a construction being placed upon their conduct such as the writer chose to state. The defendant contends upon these facts that the contract in ques- [*484 tion in this case was divisible in its nature and character, and that a refusal to pay or settle for the iron delivered in any one month was not a justification for the other party to refuse to deliver the balance of the iron called for by the contract. And the claim The defendant sets up as a third ground for a reversal of the judgment that the plaintiff's assignor was himself in default upon the contract, and hence the plaintiff was in no position to enforce it or to recover damages for an alleged default of the defendant.quent to that interview and on the 6th of It appears in evidence that after the execution of the agreement of July, 1890, the assignor of the plaintiff proceeded with the delivery of the iron, and duly received the notes of the defendant therefor at the rate of $18 per ton up to the month of January, 1891. For that month there were delivered to the defendant some 640 tons, and the defendant was bound to give its notes at $18 per ton therefor on the 27th of February. On the 3d of February, at the procurement of the defendant, as the referee finds and as the evidence tends to show, the arbitration provided for in the July agreement was commenced, although the contract was not then fully terminated. Before the arbitration was proceeded with, the July agreement was by mutual consent of the parties altered so as to read "contract" instead of "market" price, as already stated. On the 10th of Feb-is made that there was nothing proved other ruary the arbitrator made his award, in which he refused to grant any abatement to the defendant from the contract price as contained in the original contract of December, 1899, for $23.50 per ton. which had in some previous month been delivered, we are of the opinion that the defendant's counsel is in error in his characterization of the purport and result of the in than a simple refusal of defendant to pay or settle for the January iron that had already been delivered. Without stopping to inquire as to the correctness of the legal proposition maintained by defendant as to the divisibilIn the meantime the plaintiff's assignority of this particular contract, and the liawas engaged in making deliveries of the iron bility of the vendor to still deliver the iron *483] for the month of February, and *de-after a mere refusal to pay or settle for that livered over seventeen hundred tons during that month. The 27th of February was the day when the notes were to be given by defendant for the January deliveries. A copy of the arbitrator's award had been served up-terview between plaintiff's agent and the ofon the defendant before the 27th, and, as appears, it was the cause of very great dissatisfaction on the part of the president of the defendant. The notes for the January deliveries of iron were not given, and the omission caused instant efforts on the part of the plaintiff's assignor to discover the reason and to get the notes. While these efforts were on foot and on the 7th and 9th of March, the plaintiff's assignor delivered some 80 tons of iron to defendant, and then ceased. There then remained some 4,800 tons of iron to be delivered under the contract in order to fill the amount of 30,000 tons contracted to be sold. The ficers of the defendant. The award of the arbitrator had taken from the defendant all right to any reduction from the contract price of the iron, and the defendant was therefore liable eventually to pay, by reason of such decision to the plaintiff's assignor the sum of $5.50 on every ton of iron which had already been delivered, and $23.50 on every ton which was thereafter to be delivered. president of the defendant not only says that the defendant will give no more notes (which language naturally construed would not be limited to a refusal to give notes for the January deliveries only), but at the same time it is plainly, definitely, and unambiguously The assignor of the plaintiff, having failed stated that the defendant would not abide by to obtain any satisfaction for the neglect of the arbitration, and that it was out of the the defendant to send its notes for the Jan- question that it was going to lose by this conuary deliveries of iron, employed an agent, tract so much as would be contemplated in who on the 4th of March called upon the offi- that decision. The decision of the arbitracers of the defendant at Scranton and asked tor relegated defendant to a liability to he both the secretary and president why the measured by its original contract of Decemnotes were not sent. The answer of the lat-ber, 1889, not only for all iron already deter was that there would be no more remit-livered, but for all that was to be delivered tances until Hart & Co. were willing to come in the future, and hence the statement of the to some reasonable settlement. He continued by discussing the award of the arbitrator, and said it was entirely out of the ques president was a plain declaration that the defendant would not abide by a decision which compelled it to live up to the terms of Nichols v. Scranton Steel Co. monthly deliveries, and in any event he urges that no cause of action accrued until subsequent to the month when the last deliveries of the iron under the contracts would have been made. If a contract of this nature can be repudiated by words and action, we are quite clear the defendant accomplished that result. We have already expressed our views upon substantially this proposition, and need not repeat them. We do not think the action was prematurely brought. that contract both as to the past and for the future. If this did not amount to a *485] *repudiation of the obligations of the contract, it is difficult to see what would. The defendant absolutely refuses to give any more notes for any purpose until the other parties make some reasonable settlement, that is, until they assent to some curtailment of their legal rights under the contract, and it is a plain and full refusal to abide by the terms of the contract under which the defendant was then held. This, of course, included a refusal to pay the contract price for the iron yet to be delivered, as well as But assuming the action to have been well for that already delivered. The assignor of brought as to part of the plaintiff's recovery, the plaintiff had the right upon such refusal the defendant still insists that it was error and announcement to regard the contract as to include therein the moneys for the Febru repudiated by the defendant, and to claim ary and March deliveries of iron, because by that it was not a mere refusal to give notes the contract payments were not due thereon for the January deliveries, and under such until March 27th and April 27th, respectivecircumstances there was no necessity to ten-ly, and then only by notes payable in four der the deliveries of the balance of the iron. months, and the defendant requested a findThe defendant's refusal to be further bounding that at the time of the commencement by the terms of the contract, and the open and plain repudiation thereof by it, would prevent it from insisting that, notwithstanding such refusal and repudiation, the other parties must still remain held by the contract, and that unless they should still continue and go on and make deliveries of iron they would be in the law considered as in default. The acts of the defendant were such as to justify the referee in his finding that the defendant had refused to be further bound by its contract and that it had repudiated its obligations under it. Some criticism is made upon the fact that, subsequent to the commencement of the action herein, it appears that plaintiff was willing to carry out the contract and deliver to an assignee of the defendant the balance of the iron, amounting to 4,800 tons, for $18 a ton, providing it could be done without prejudice to the claim against the defendant. It is claimed that in some of the letters the contract is treated as still subsisting. We do not think there is anything therein which necessarily changes the position of the plaintiff in this action, and we are of the opinion that under the cases in this court relating to the repudiation of executory contracts the plaintiff proved sufficient in this case to entitle him to recover some damages for the breach of the contract. Burtis v. Thompson, *486] 42 N. *Y. 246, 1 Am. Rep. 516; Howard v. Daly, 61 N. Y. 362, 374, 19 Am. Rep. 285; Freer v. Denton, 61 N. Y. 492, 496: Ferris v. Spooner, 102 id. 10; Windmuller v. Pope, 107 id. 674. Another and somewhat similar ground for a reversal is argued by the counsel for defendant, which is that the action was prematurely brought. The defendant's counsel seeks to maintain this proposition by substantially the same argument advanced to support the claim that the plaintiff was in default for a nondelivery of the balance of the iron. He contends here that the plaintiff was bound to deliver the balance of the iron even if the defendant refused to pay for the of the action nothing was due or payable from it to plaintiff for or on account of the iron delivered in the months of February and March, 1891. Assuming the contract to have been lived up to by all parties, this request would be correct. And also on that assumption, the deliveries of the 4,800 tons of iron yet remaining undelivered would not have been due, and when delivered according to the terms of the contract the defendant would not be liable to pay for the iron delivered in any one month until the 27th day of the following month, and then only by giving notes at four months. *We hold, however, that by the re- [*487 pudiation the plaintiff is absolved from the further delivery of iron under the contract, and that an action to recover damages arising from defendant's refusal to receive and pay for such iron may be at once commenced. We do not think the fact that some iron had been delivered, the time for the payment of which had not, by the terms of the contract, arrived when the suit was commenced, makes any difference. If it were not for a repudiation of the contract nothing could be recovered as damages for the iron not delivered, because by the terms of the contract such delivery and payment would not be due, but when the defendant does repudiate the contract and refuses on its part to fulfil its terms, it cannot be heard to say that the other party must himself be bound by it, and must await the expiration of the term of credit provided for by it before any action can be maintained under it. The plaintiff does not recover the moneys as being the contract price strictly and technically, but as damages for the breach of the contract by the defendant. And those damages would be the present worth of the moneys payable under the contract at the time therein provided. Thus, if the moneys were to be due at the end of four months from the time when the iron was, by the terms of the contract, to be delivered, the Nichols v. Scranton Steel Co.-Henricus v. Englert. measure of damages would be, in such case, the present worth of an obligation to pay money due at such a certain time. in support of these propositions, beginning with Co. v. Smith, 11 Ohio C. C. 213; Kalkhoff v. L. R. 7 Exch. 111; Roper v. Johnson, L. R. 8 It is not intimated that in the bald case of C. P. 167; Johnstone v. Milling, L. R. 16 Q. B. The doctrine of these authorities has a party bound to pay a promissory note which Div. 460. been adopted and approved by the courts of this rests in the hands of the payee, but which is country in numerous adjudications. Fossnot yet due, such note can be made due by Schneider Brewing Co. v. Bullock, 16 U. S. App. any notice of the maker that he does not in- 311, 59 Fed. Rep. 83, 8 C. C. A. 14; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Ferris v. tend to pay it when it matures. We decide Spooner, 102 N. Y. 10: Windmuller v. Pope, 107 simply this case, where there are material N. Y. 674; Fox v. Kitton, 19 Ill. 519; Engesette provisions and obligations interdependent. Inv. McGilvray, 63 Ill. App. 461; Lake Shore & M. such case, and where one party is bound, from R. Co. v. Richards, 152 Ill. 59, 30 L. R. A. 33; Crabtree v. Messersmith, 19 Iowa, 179; time to time, as expressed, to deliver part of Holloway v. Griffith, 32 Iowa, 409, 7 Am. Rep. an aggregate and specified amount of prop. Brand, 26 Mich. 173; Sloss Marblehead Lime 208; McCormick v. Basal, 46 Iowa, 235; Flatt erty to another, who is to pay for each parcel delivered at a certain time and in a certain way, a refusal to be further bound by the terms of the contract, or to accept further deliveries, and a refusal to give the notes al*488] ready demandable for a portion of *the property that has been delivered, and a refusal to give any more notes at any time or for any purpose in the future, or to pay moneys at any time, which are eventually to be paid under the contract,-all this constitutes a breach of the contract as a whole, and gives a present right of action against the party so refusing to recover damages which the other may sustain by reason of this refusal. We refer to the cases above cited as a justification for the rule, and we think the principle decided by them and in the cases therein cited justifies and demands this holding. The exceptions taken by the defendant to the admission of evidence and argued here have been carefully reviewed, and they constitute, as we think, no reason for a reversal of the judgment. Upon the whole case we think the judgment is right, and that it should be affirmed, with costs. All concur. Cited in Union Ins. Co. v. Central Trust Co. 157 N. Y. 643, 44 L. R. A. 227, to the proposition that, where a party, before the time of performance arrives, put it out of his power to keep his contract, there is an immediate right of action for a breach of that contract by anticipation. Failure to pay when due an instalment provided for in a contract for railroad construction is not such a breach of the entire contract as to authorize the contractor to refuse to proceed further, or to entitle him to recover profits which he would have earned had the contract been fully performed. William Wharton, Jr., & Co. v. Winch, 140 N. Y. 287. In Marks v. Van Eeghen, 85 Fed. Rep. 855, Judge Wallace states the rule to be "that where one party to an executory contract renounces it without cause, before the time for performing It has elapsed, he authorizes the other party to treat it as terminated, without prejudice to a right of action for damages; and, if the latter elects to treat the contract as terminated, his right of action accrues at once. The latter, however, must elect whether he will treat the contract as terminated, or as still existing, and, if he does not do so, his right of action for a breach can only rest upon the refusal of the other party to perform the existing contract according to its terms. The action cannot be maintained when the evidence to prove a renunciation of the contract is equivocal and indeterminate. It is enough, however, if it appears that he has distinctly signified his intention to repudiate the contract. The English authorities HENRICUS v. ENGLERT. (Rev'g 43 N. Y. S. R. 595, 17 N. Y. Supp. 235.) subcontractor to the principal contractors, in The measure of damages upon a bond for the faithful performance of a subcontract is the amount which the principal contractor has been obliged to allow the owner upon the original contract on account of the breach by the subcontractor of his contract. APPEAL from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 22, 1892, which affirmed a judgment in favor of defendant entered upon the report of a referee. This was an action upon a bond executed by defendant as surety for one Leonard Vogel. In September, 1884, these plaintiffs, signing themselves as agents, entered into a contract with the village of Brockport to erect a village building according to plans and specifications drawn and prepared by H. D. Gleason, architect, for the sum of $9,700. Thereafter they sublet the carpenter work upon the building to Leonard Vogel for the sum of $4,400. They required Vogel to give security for the performance of his contract with them, and thereupon he furnished to them a bond executed by the defendant under his seal, in the penal sum of $5,000, con Henricus v. Englert. ment should have been for plaintiffs for $550. On the facts found by the referee the judg C. R. R. Co. v. Gow, 59 Ga. 686 2 Story on Cont. § 1127: Post v. Losee, 111 Ind. 74; Ray v. Brenner, 12 Kan. 105; Dean v. Chapman, 62 Ala. 58; Clark v. Birley, L. R. (41 Ch. Div.) 442. The alleged acts of the architect and trustees in directing the work changed from specifications, were the acts of strangers to the contract between plaintiffs and Vogel, and not the acts of plaintiffs, and, therefore, did not constitute ity of the creditor. Ferguson v. Hubbel. 97 a change of contract, nor a deviation by authorN. Y. 510: Butler v. Townsend, 126 id. 109; Creed v. Hartmann, 29 id. 593; Blake v. FerS. R. 693: King v. R. R. Co., 66 N. Y. 184; ris, 5 id. 61: Dirringer v. Moynihan, 32 N. Y. Slater v. Messereau, 64 Id. 145. That the settlement between the village and sent of defendant does not affect his liability. plaintiffs was without the knowledge or conKidd v. McCormick, 83 N. Y. 397. ditioned that Vogel "shall perform all the from any liability upon his bond, and [*491 obligations, covenants, and agreements made upon that ground dismissed the complaint. and entered into with the said Henricus & The plaintiffs appealed to the General Term, Son, agents, and shall erect, work, make, and and, as appears from the opinions there procomplete a certain town hall and fire depart-nounced, it differed from the referee and held ment building for the village of Brockport, that the alleged changes and alterations in New York, agreeable to the plans and in per- the manner of constructing the building were fect keeping with the revised carpenter speci- not such as to discharge the defendant from fications prepared for the same by H. B. his obligation under his bond; but it held Gleason, architect." After the completion that he was discharged because of the findof the building the village claimed that it ing by the referee that the plaintiffs had fully had not been erected according to plaintiff's paid Vogel the contract price due him, and contract with it, and claimed damages for upon that ground it affirmed the judgment. and on account of defects in the work and materials. Upon negotiations and settle- E. F. Fink, for appellants: ment between Vogel, the plaintiffs, and the village, those damages were adjusted at the *490] sum of $550, which amount was *deducted from the contract price payable to the plaintiffs. Thereafter the plaintiffs commenced this action against the defendant upon his bond, alleging a breach thereof, and claiming to recover as damages the sum of $5,000, the full penalty of the bond. The defendant answered the complaint and besides denying most of the material allegations thereof, set up two affirmative defenses: (1) That at the time of the execution of the bond an arrangement was made and entered into between the village, Vogel and the plaintiff, whereby Vogel was substituted in the place and stead of the plaintiffs, as principal contractor, with regard to so much of the work upon the building as Vogel had contracted with the plaintiffs to do, and that under and in pursuance of that arrangement Vogel was accepted as such contractor, with regard to such portion of the work; and thereupon the bond of the defendant was delivered over and assigned to the village as security for the performance of the work by Vogel; (2) that on or about the 25th day Suit is properly brought by plaintiffs. [492 of March, 1885, all matters in difference be- Schafer v. Hinkel, 75 N. Y. 378; Briggs v. Parttween the plaintiffs and Vogel, and between id. 531: Tuthill v. Wilson. 40 Id. 427; Hensler ridge. 64 d. 357; Woodhouse v. Duncan, 106 Vogel and the village, and all matters grow-v. Sefrin, 19 Hun, 567; Tiffany v. Lord, 65 N. ing out of any of the transactions set forth in the complaint were duly settled, liqui- cites "to be held as additional security for the The assignment of the bond of the village redated, adjusted, and discharged, and the de- faithful performance of the said original agree fendant was thereupon released and dis- ment" and was not an absolute transfer of the charged from any liability or supposed lia-bond but a pledge for the performance of the agreement White v. Platt, 5 Den. 271; Stearns bility alleged to have existed against him by v. Marsh, 4 d. 227, 229: Bailey v. Drew, 2 reason of the matters set forth in the com- N. Y. Supp. 212: Markham v. Jandon, 41 N. Y. plaint. The action was referred to a referee 240, 241: Edwards on Bailments, §§ 176, 246; Nabbing v. Bank, 58 Ala. 204. and brought to trial, and upon evidence submitted to him he found the making of the contracts, the execution and delivery of the bond, the erection of the building, the claim made by the village for damages for breach of the contract with it, which damages were adjusted by the plaintiff, Vogel, and the village at the sum of five hundred and fifty dollars, and deducted from the sum payable to the plaintiffs under their contract with the village. He also found that after the execution of the bond there were some changes and alterations in the plans of the building by Vogel, the architect, and the village, and he decided that on account of such changes and alterations the defendant was discharged The act of plaintiffs in bricking up the wall, and thus leaving out the attic window was not a discharge in toto but only pro tanto. Preston v. Huntington, 67 Mich. 142; Lowman v. Yates, 37 N. Y. 600: Gaussen v. U. S., 97 U. S. 584: Holland v. Johnson, 51 Ind. 349; Sample v. Cochrane, 82 id. 262. The defendant was not discharged simply because the trustees or even plaintiffs knew of the changes and made no objection. C. R. R. Co. V. Gow. 59 Ga. 696. Y. 312. No formal reassignment from the village to been for plaintiff for $550, the proper judgment Wm. E. Warner, for respondent: The defendant's attorney on cross-examination asked James Brazil, a witness for the plain |