Bocees, J.
The recovery was allowed on the special contract to manufacture twenty-five tons of hanging paper, of a specified quality, at the price of eight cents per pound, payable on the delivery of the goods. The parties were at issue on the pleadings as to all the material facts of the case, hence it was incumbent on the plaintiffs, as a prerequisite to a recovery for the full contract-price, to establish the contract and show its performance on their part, or what in law would be an equivalent to performance, an acceptance of the property by the defendants in performance thereof. This the plaintiffs assumed to do; aud they gave evidence in that regard, which they deemed sufficient to sustain a recovery, and rested the case. Thereupon the defendants moved for a nonsuit, on the ground, among others, in substance, that the paper proved to have been manufactured and sent to them, was inferior in quality to that called for by the contract ; and that they had refused to accept it in performance of the contract for that reason. The referee denied the motion and ruled as follows: “ That as to the quality of the paper, the defendants had the affirmative of the issue; and that the plaintiffs might answer the [604]*604evidence of the defendants on that issue.” In this ruling, to which exception was interposed, I am of the opinion the referee was in error. The plaintiffs could not lawfully recover for the full sum agreed to l)ejocád, without proving performance of the contract on their part. There was no waiver of performance by the defendants in any respect, either on the pleadings or during the trial. It was therefore incumbent on the plaintiffs, in order to a full recovery, to establish the fact that the paper manufactured for the defendants was of the quality agreed upon by the parties. The affirmative of this issue was with the plaintiffs at all times to the end of the trial; so long as the defense was insisted on, it would remain with the plaintiffs to establish the fact that the paper was such in quality as the contract called for; and as to this the affirmative would continue with the plaintiffs, whatever might be the state of the proof. Proof that the defendants had accepted the property, would support or tend to support the plaintiffs in the affirmative of the issue, the maintenance of which rested on them. But the issue between the parties would remain the same, and the affirmative of the issue would continue with the plaintiffs. It was therefore error to hold as matter of law, all material facts being in issue between the parties, and the action being one based on an executory contract, that the defendants had the affirmative of the issue as to the quality of the paper sent them under the contract.
The referee found as matter of fact that the paper was accepted by the defendants on the contract, excepting the last parcel of 9,844£ pounds, and that said latter quantity was delivered or tendered to them. The defendants insist that the finding as to an acceptance of the paper on the contract, is against the averments of the parties in the pleadings and contrary to the evidence. The complaint does not aver either delivery or acceptance, but charges only that they “offered to deliver * * * and have ever since been ready and willing so to do.” In the defendants’ answer there is an averment that they refused to accept the paper under or in performance of the contract, and the plaintiffs in their reply substantially reiterate this averment. Thej then state that as to the first parcels forwarded, the defendants wrote them that they “ would not accept it on the contract,” and as to the last parcel the averment is that they tendered it to the defendants, but “ they refused to receive the same upon the [605]*605contract.” Thus stands tbe ease on tbe pleadings as regards tbe acceptance by the defendants of tbe paper under tbe contract, and it may be here added that tbe proof is in almost exact accordance with these sworn averments in tbe pleadings. It seems, therefore, that tbe finding of fact that tbe paper (excepting tbe last parcel forwarded) was accepted by tbe. defendants under tbe agreement, is against the averments in tbe pleading’s as there made by both parties. If it be suggested that an amendment of tbe pleadings was allowed, it must be answered that it nowhere appears that there was an amendment, changing tbe record as to this averment of fact made by both parties. The referee held that be would allow an amendment of tbe complaint to correspond with the case made by the evidence. In tbe first place it does not appear that tbe evidence would establish an unqualified acceptance of tbe paper by tbe defendants on tbe contract. But it does not appear that any amendment whatever was in fact made. Tbe pleadings now stand as originally put in, unamended, and this too, notwithstanding the repeated and urgent protests of tbe defendants, who insisted with the utmost pertinacity, that if there was to be an amendment it should be made so that they might have knowledge of tbe case they were required to meet. Tbe defendants had a right to know certainly before the case was closed on tbe proof, in what respect tbe pleading of the plaintiffs was to be amended, as they would have ’the right to answer the amended pleading. This right was absolute in case tbe issues were to be changed in any material respect, as by changing or striking out averments already made. Such an amendment would be more than a mere formality; more than merely making the pleading to conform to tbe proof, without any change of tbe pleading in its substance and general scope. Judge Smith well remarks, in Wright v. Delafield (25 N. Y., 266, 270), that “the whole scope of these provisions of the Code, in respect to pleadings and amendments thereof, implies that all tbe material allegations of tbe plaintiff or defendant shall be spread upon tbe record; shall be actually inserted in tbe pleadings, and when variances are disregarded, it is upon tbe principle that they may be amended nunc pro tuno at tbe trial, and tbe court will so order to perfect tbe record so that it shall show the question really litigated and decided.” lie adds: “ The principle still remains that tbe judgment to be rendered by any court must be sectmdum alie[606]*606gata et probata‘, and this rule cannot be departed from without inextricable confusion and uncertainty, and mischief in the administration of justice.” Now, in the case at bar, no amendment of the plaintiff’s pleading was in fact made; nor does it appear in what particular an amendment was desired or deemed necessary. It was not suggested on the trial, as we can discover, that any change was to be made, as to the averment actually inserted in the plaintiff’s pleading, to the effect that there was no acceptance of the paper by the defendants, on the contract. It stood a matter of absolute verity on the record as made up by the parties themselves, and in fact still remains there, that the defendants did not accept the goods on the contract. The finding of the referee, therefore, against the record, even if the proof would have sustained the finding, was error; for the averment having been made by both parties in the pleadings, it was not open to contradiction by proof. And it may be here added, that for aught that appears, the decision of the case by the referee was based very much, if not entirely, on his findings of fact in that regard.
There seems also to be an insurmountable difficulty in the case on the admission of evidence.
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Bocees, J.
The recovery was allowed on the special contract to manufacture twenty-five tons of hanging paper, of a specified quality, at the price of eight cents per pound, payable on the delivery of the goods. The parties were at issue on the pleadings as to all the material facts of the case, hence it was incumbent on the plaintiffs, as a prerequisite to a recovery for the full contract-price, to establish the contract and show its performance on their part, or what in law would be an equivalent to performance, an acceptance of the property by the defendants in performance thereof. This the plaintiffs assumed to do; aud they gave evidence in that regard, which they deemed sufficient to sustain a recovery, and rested the case. Thereupon the defendants moved for a nonsuit, on the ground, among others, in substance, that the paper proved to have been manufactured and sent to them, was inferior in quality to that called for by the contract ; and that they had refused to accept it in performance of the contract for that reason. The referee denied the motion and ruled as follows: “ That as to the quality of the paper, the defendants had the affirmative of the issue; and that the plaintiffs might answer the [604]*604evidence of the defendants on that issue.” In this ruling, to which exception was interposed, I am of the opinion the referee was in error. The plaintiffs could not lawfully recover for the full sum agreed to l)ejocád, without proving performance of the contract on their part. There was no waiver of performance by the defendants in any respect, either on the pleadings or during the trial. It was therefore incumbent on the plaintiffs, in order to a full recovery, to establish the fact that the paper manufactured for the defendants was of the quality agreed upon by the parties. The affirmative of this issue was with the plaintiffs at all times to the end of the trial; so long as the defense was insisted on, it would remain with the plaintiffs to establish the fact that the paper was such in quality as the contract called for; and as to this the affirmative would continue with the plaintiffs, whatever might be the state of the proof. Proof that the defendants had accepted the property, would support or tend to support the plaintiffs in the affirmative of the issue, the maintenance of which rested on them. But the issue between the parties would remain the same, and the affirmative of the issue would continue with the plaintiffs. It was therefore error to hold as matter of law, all material facts being in issue between the parties, and the action being one based on an executory contract, that the defendants had the affirmative of the issue as to the quality of the paper sent them under the contract.
The referee found as matter of fact that the paper was accepted by the defendants on the contract, excepting the last parcel of 9,844£ pounds, and that said latter quantity was delivered or tendered to them. The defendants insist that the finding as to an acceptance of the paper on the contract, is against the averments of the parties in the pleadings and contrary to the evidence. The complaint does not aver either delivery or acceptance, but charges only that they “offered to deliver * * * and have ever since been ready and willing so to do.” In the defendants’ answer there is an averment that they refused to accept the paper under or in performance of the contract, and the plaintiffs in their reply substantially reiterate this averment. Thej then state that as to the first parcels forwarded, the defendants wrote them that they “ would not accept it on the contract,” and as to the last parcel the averment is that they tendered it to the defendants, but “ they refused to receive the same upon the [605]*605contract.” Thus stands tbe ease on tbe pleadings as regards tbe acceptance by the defendants of tbe paper under tbe contract, and it may be here added that tbe proof is in almost exact accordance with these sworn averments in tbe pleadings. It seems, therefore, that tbe finding of fact that tbe paper (excepting tbe last parcel forwarded) was accepted by tbe. defendants under tbe agreement, is against the averments in tbe pleading’s as there made by both parties. If it be suggested that an amendment of tbe pleadings was allowed, it must be answered that it nowhere appears that there was an amendment, changing tbe record as to this averment of fact made by both parties. The referee held that be would allow an amendment of tbe complaint to correspond with the case made by the evidence. In tbe first place it does not appear that tbe evidence would establish an unqualified acceptance of tbe paper by tbe defendants on tbe contract. But it does not appear that any amendment whatever was in fact made. Tbe pleadings now stand as originally put in, unamended, and this too, notwithstanding the repeated and urgent protests of tbe defendants, who insisted with the utmost pertinacity, that if there was to be an amendment it should be made so that they might have knowledge of tbe case they were required to meet. Tbe defendants had a right to know certainly before the case was closed on tbe proof, in what respect tbe pleading of the plaintiffs was to be amended, as they would have ’the right to answer the amended pleading. This right was absolute in case tbe issues were to be changed in any material respect, as by changing or striking out averments already made. Such an amendment would be more than a mere formality; more than merely making the pleading to conform to tbe proof, without any change of tbe pleading in its substance and general scope. Judge Smith well remarks, in Wright v. Delafield (25 N. Y., 266, 270), that “the whole scope of these provisions of the Code, in respect to pleadings and amendments thereof, implies that all tbe material allegations of tbe plaintiff or defendant shall be spread upon tbe record; shall be actually inserted in tbe pleadings, and when variances are disregarded, it is upon tbe principle that they may be amended nunc pro tuno at tbe trial, and tbe court will so order to perfect tbe record so that it shall show the question really litigated and decided.” lie adds: “ The principle still remains that tbe judgment to be rendered by any court must be sectmdum alie[606]*606gata et probata‘, and this rule cannot be departed from without inextricable confusion and uncertainty, and mischief in the administration of justice.” Now, in the case at bar, no amendment of the plaintiff’s pleading was in fact made; nor does it appear in what particular an amendment was desired or deemed necessary. It was not suggested on the trial, as we can discover, that any change was to be made, as to the averment actually inserted in the plaintiff’s pleading, to the effect that there was no acceptance of the paper by the defendants, on the contract. It stood a matter of absolute verity on the record as made up by the parties themselves, and in fact still remains there, that the defendants did not accept the goods on the contract. The finding of the referee, therefore, against the record, even if the proof would have sustained the finding, was error; for the averment having been made by both parties in the pleadings, it was not open to contradiction by proof. And it may be here added, that for aught that appears, the decision of the case by the referee was based very much, if not entirely, on his findings of fact in that regard.
There seems also to be an insurmountable difficulty in the case on the admission of evidence. The important and almost sole question litigated before the referee was, on the issue as to the quality of the paper manufactured and sent to the defendants under the contract, whether it answered the requirements of the contract made between the parties. A very great proportion of the evidence given on the trial bore on this issue. In order to strengthen their case, the plaintiffs gave evidence, against objection, to the effect that the workmen employed in the manufacture of the paper, exercised due care and diligence in that regard. The following questions were allowed, to wit: What care was taken in the manufacture of the last twenty-five tons compared with the first twenty-five tons ? What degree of care was used in the manufacture of the last lot of paper ? What degree of care was used in the manufacture of this paper % Answers were given by the witnesses respectively as follows: It was very carefully manufactured. So far as I saw it was manufactured with the utmost care. More care was taken with it than with the first lot. This evidence was manifestly improper. The subject of examination was not whether care and diligence were observed in its manufacture, but whether the paper in fact, when manufactured, [607]*607answered the requirements of the contract made by the parties. No matter whether due care was or was not exercised in its manufacture, if the paper came out right according to the contract, and due care would not help the case, if even with due care the paper was not what the plaintiffs had agreed to make and deliver. " "What was the quality of the paper in point of fact, was the question. If it did not answer the conditions of the contract, the" defendants were not bound to accept or pay for it, however great had been the care exercised in its manufacture. This evidence was improperly allowed.
There are other grounds of error urged by the appellants, besides those above- considered; but the conclusion here reached renders their examination unnecessary. It follows that the judgment must be reversed.
A few words of a general character may not be here out of place, with a view to a retrial. The case is not complicated either on the law or the facts, as disclosed on the trial before the referee. On the undisputed facts, with a complaint containing the proper averments, it seems that the plaintiffs are entitled to recover (1) the full amount of $4,000 and interest, in case it shall be established by them that they fully performed the contract, on their part, to make and deliver twenty-five tons of paper of the quality required by its terms ; or (2), if of inferior quality to what was agreed upon, then the contract-price, less the difference between such contract-price and its market value, at the time and place it was received and used by the defendants.
This latter rule of liability grows out of the fact, that the defendants, although refusing to accept the paper on or in performance of the contract, yet received and used or sold it. If the paper was not of the quality agreed upon, they might refuse to receive it, in which case no recovery could be had against them. But if they receive and use the paper, they are bound to pay for it at its value, measured by a just rule of estimate.
Judgment reversed, new trial granted, with costs to abide the event, and reference discharged.
Present — Learned, P. J., Bookes and Boardman, JJ.
Judgment reversed and new trial granted, costs to abide event, and reference discharged.