103 Misc. 233 | New York Court of Claims | 1918
This is a claim against the state of New York for $3,951.99, filed by the Atlanta Construction Company August 19, 1914. This company made a contract with the state of New York for the building of a county highway known as the Dresden-Penn Yan county highway No. 1205. The work was completed by the claimant and claimant has been paid in full for said work, except that it insists that it is entitled to the sum above mentioned.
Item No. 40 in said contract relates to 7,380 cubic yards of stone for the sub-bottom course. Written on
This' provision above quoted in reference to item 40 being a part of the construction plan and the construction plan being a part of the contract, we believe that this became a part of the contract itself, and not merely information for bidders, nor an estimate or opinion or representation leading up to the making of the contract. We are fully aware that these contracts are so drawn as to excuse the state from almost any statement or representation which it may make in reference to matters similar to" the .one here involved, but we believe that there should be a limit placed on this method of leading a contractor astray to his damage and loss. There is no reason why the English language, when used by officials of the state, should not have the same meaning and significance which is attached to it when used in contracts between individuals. There was no ambiguity in any way about this statement. It was positive, direct and peremptory. The contractor might well be excused from relying upon it as it did, if an excuse were necessary.
The state is called upon, in contracting with its citizens, to set a standard which for fairness, justice, equity, honesty and plain, frank statement of its purpose, without subterfuge or circumlocution, shall be beyond all criticism as being in any way possible of deception. We find as a fact that the language of the contract actually misled the contractor. The contract was perfectly susceptible of the construction the contractor gave it. It was deceived by this act of the state to its loss. Justice requires that the state should make it good. The same principle for which we are here contending is well set forth in the case of Hollerbach v. United States, 233 U. S. 165. The facts in that case were somewhat different from those in the
The language of Judge Earl, in Danolds v. State of New York, 89 N. Y. 44, may well be quoted as sustaining our decision here. He said: “ The sovereign can contract and has very many occasions to do so; it can build canals and public buildings, and engage in public works, and in carrying forward its projects it makes use of the instrumentalities which individuals use for the same purposes. It must be governed by the same rules of common honesty and justice which bind individuals. It is for its interest that its contracts should be binding upon all the parties thereto. If it can at pleasure violate or abandon its contracts, in the absence of any stipulation authorizing it to do so, there will be such uncertainty and risk attending all its contracts that it will go into the market for work and materials at a great disadvantage. As was well said by Judge Allen, in People v. Stephens (71 N. Y. 549): ‘ There is not one law for the sovereign and another for the subject; but, when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, * * * whenever the contract, in any form, comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the dealer, contractor and suitor.”
Webb and Cunningham, JJ., concur.
Ordered accordingly.