43 Barb. 33 | N.Y. Sup. Ct. | 1864
By the Court,
By the terms of the contract between the plaintiff and the defendants, for a breach of which a recovery was had in this action, no definite time was fixed for the completion of the plaintiff’s work under it, but it contained a covenant by which the plaintiff was bound “to commence said work and proceed therewith without delay, and in such manner as not to delay the contractor for the mason work.” It will be observed that here was a positive engagement on the part of the plaintiff as to the manner in which he was to proceed with the performance of the work he had agreed to do, and a direct promise and obligation on his part that he should commence at once and proceed without delay to its conqiletion. If the plaintiff had failed to proceed with the work and fulfill this provision of the contract without delay, he would most certainly have been liable for any damages which may have accrued to the defendants, unless the delay was caused by the default of the defendants. This covenant in the contract was, to a considerable extent, for the advantage and benefit of the defendants, and contemplated a prompt and speedy performance of the work contracted for. The plaintiff, being thus bound by his agreement, commenced and proceeded with the job without delay, and was liable in damages for a non-performance of the covenant, which obligated him to do so. The question arises whether there was not a corresponding obligation on the part of the defendants, implied from the contract itself,
Suppose the plaintiff had proceeded, as he had a right to do, and provided the materials necessary to perform the work, and the defendants failed to provide the building so that he could use them until they became depreciated in value, and caused serious loss to the plaintiff ; can there be a doubt that the defendants would be liable ? Again: suppose they had not provided any building whatsoever, so that the plaintiff was utterly unable to perform this condition, and was damaged greatly thereby; could they then be exonerated ? If they had a right to delay three months, then they were equally authorized to delay for a year, or forever, and the plaintiff was without any redress whatever. In such a view of the question, the contract was utterly void as to the defendants, while the plaintiff was bound to perform it, and was liable for any failure to do so.
I think the covenant on the part of the plaintiff, to commence the work and proceed therewith without delay, raised
The principle decided in Holmes v. Groff, (3 M. (& W. 38,) appears to be applicable to the case at bar. There the defendants were not allowed a deduction under the contract from the contract price, for the non-completion of the building within the specified time, because they were unable to give possession of the building to the plaintiff for some weeks. There was no express provision in that contract, that the defendants should give possession, in so many words, but it was essential for its performance; such is precisely the case here. Until the building was in readiness, it was utterly out of the power of the plaintiff to perform.
It is said that there was no breach of the contract, and that it only imposed upon the defendants a single duty, and that was to pay the plaintiff for his work. I think otherwise. It would certainly he remarkable if, with a positive duty imposed upon the plaintiff, no corresponding obligations rested upon the defendants. Bor is it adding any thing to the written contract, to infer an implied obligation to do what was actually intended, and what was absolutely essential to give force, effect and vitality to it. Without this, it would be entirely useless and ineffective for any purpose. The case stands thus: The defendants desired that the plaintiff
It is said that the plaintiff waived the alleged breach of the contract, by going on without complaint or objection and completing the work, some three months after the execution of the contract. I think there was no waiver by proceeding with the contract, the failure of the defendants to have the building ready for him preventing his going on with it at an earlier day. He had a right to proceed with it afterwards, and compel the defendants to pay the increased expenses incurred by reason of the delay. Where a party was prevented from the performance of a contract within the stipulated time by the omission of the other, and subsequently performed the work agreed upon at a higher price, it was held, that he was not obliged to bring his action on the contract, but might resort to the quantum meruit to obtain his indemnity. (Dubois v. The Delaware and Hudson Canal Co., 4 Wend. 285.) The court also held in that case, that if the work was more expensive, the additional expense thus incurred should be added to the contract price. The loss may have been far greater to abandon the contract entirely, than to proceed with its execution so far as practicable; and under the authority cited, the actual damages would not be confined to his actual loss at that time. Nor do I understand that the authorities referred to by the defendants’ counsel hold any such doctrine, under circumstances similar to the present case. (See 17 John. 357; 7 Hill, 61.) The plaintiff had, I think, a perfect right to proceed to fulfill the con
It is further urged that the assignment of the contract to Wasson, and Wasson’s receipt in full, deprives the plaintiff of all claim arising from a breach of it. There is evidence to prove that the contract was never assigned absolutely, but only as collateral, and that before suit brought Wasson was paid in full. The referee has found, that at the time of the commencement of this suit the plaintiff was the absolute owner of the claim, and that if has never been paid. The receipt given by Wasson was in payment for the contract price, and under all the circumstances may be considered as embracing only the money due upon the contract. Besides, this is an action to recover damages by reason of the defendants failing to fulfill their contract, and payment of the contract price can scarcely be considered as a bar to such an action. Although the claim originated out of the contract itself, yet the action arises from a failure to fulfill it, on the part of the defendants, and may be maintained upon a quantum meruit, independent of the contract.
It is also insisted that the referee erred as to the measure of damages; that the higher price paid by the plaintiff for work and materials, owing to the later day at which the plaintiff commenced his work, can not be recovered; and that the short days in winter, or the cold weather, were not proper to be taken into consideration. In reference to the first branch of the objection, I think the case is distinguishable from those cited by the defendants’ counsel. (7 Hill, 61. 2 Seld. 85.) In the first case, (7 Hill, 72,) in estimating the damages, it was assumed that the plaintiffs Were necessarily compelled to break up all their sub-contracts, as a consequence of a breach of the principal one, and that this was to be considered in settling the amount of damages, which was held to be erroneous. Eo such question arises in the present case. The plaintiff was not necessarily bound to purchase the materials before they were required for use; and the evi
For the reasons given, a new trial must be denied, and the judgment entered on the referee’s report affirmed, with costs.
Potter, Miller and Ingalls, Justices.]