106 N.Y.S. 175 | N.Y. App. Div. | 1907
The appellant argues that this action, being for breach of contract, cannot be maintained for the: reason that no enforcible contract was made, and that it should have been brought for a failure to make a contract. The argument, to say the least, is not ingenuous, for the complaint alleges the refusal .of the defendant to execute a contract which had been awarded to the plaintiff upon competitive bidding after all of the requirements .of the statute had been observed. The contract duly awarded as aforesaid was for furnishing, delivering and laying water mains in certain streets in the borough of Richmond. After it had been duly awarded and after the plaintiff’s sureties had been approved and after the plaintiff, upon notice to the chief engineer, had placed preliminary orders so as to be in a position to execute his contract speedily, as he was required .to do by its terms, "the commissioner of water supply, gas and electricity refused to execute the contract and rejected all bids.
The appellant relies on the following provisions of section 149 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap, 247), to wit: “No contract hereafter made,the expense of the execution of which is not by l'aw or ordinance, in whole or in part, to be paid by assessments upon the property benefited, shall be binding or of any force, unless the comptroller shall endorse thereon his certificate that there remains unexpended and unapplied, as herein provided, abalance of the appropriation or fund applicable thereto, sufficient to pay the estimated expense of executing such contract, as certified by the officer making the same.” Such certificate was never made for the reason that the contract was never presented to the comptroller for his certificate, said commissioner having rejected the bids after awarding the contract as aforesaid. Section 419 of the charter contains the following provision : “ If a borough president or the head of a department shall not deem it for the interests of the city to reject all bids, he shall, without the consent or approval of any other department. or officer of the city government, award the contract to the lowest bidder, unless the board of estimate and apportionment by a three-quarter vote óf the whole board,- shall determine that it is for the public interest that a bid other than the lowest should be accepted'; * * •
It is not' claimed that the board of estimate and apportionment
The plaintiff was permitted to recover the sum of $30,231.09, the • prospective profits which liis proof showed were lost, and the sum-. of $2,052.50 for the -following expenditures,.' to 'wit: Cost of jfipe - purchased, $975.50 ; the cost of two valves, $277; cost of bond, $350; expense of formulating, bid, $150, and cost of plans, $300. The- prdr spective profits lost were proper elements:©! damage under the leading case of Masterton v. Mayor, etc., of Brooklyn (7 Hill, 61), which both sides rely upon. These profits were properly arrived at by deducting wliat it would cost to execute the contract'from the contract' price, and it- may be. conceded -that the plaintiff -could recover in
The plaintiff was also allowed interest from the date of filihg the claim: This, we think, was improper for the reason that the amount due was not capable of being ascertained by 'mere computation. While the rule that interest is not allowable on unliquidated demands has been somewhat modified, interest has only ’ been allowed where the debtor, by reference to established market values, contract prices or otherwise, could by.mere computation ascertain the amount which he owed. (See Gray v. Central R. R. Co. of New Jersey, 157 N. Y. 483; Sweeny v. City of New York, 173 id. 414; Excelsior Terra Cotta Co. v. Harde, 181 id. 11.) The ascertainment of prospective profits on such a contract as the one involved here depends upon many elements other than established market values,.and it cannot be said .that such profits could have been ascertained by the defendant by mere computation. Upon the proof the plaintiff was only entitled to recover as damages the sum of $30,231.09, and the extra allowance should be computed on that sum.
The judgment should be modified accordingly.
Jerks, Hooker, Gaynor and Rich, JJ., concurred.
Judgment'and order reversed and new trial granted, costs to abide the event, unless the plaintiff within.twenty days stipulate to reduce the recovery to the sum of $30,231.09, with a proportionate reduction of the extra allowance, in which event the judgment as reduced is affirmed, without costs.