22 N.Y. 162 | NY | 1860
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The plaintiff bases his right of recovery in this action upon the contract of October 21st, 1852, and insists that that is the contract between his assignor and the defendants, without any reference to the specifications issued by the street commissioner, and which, by the terms of the contract, were made part of it. Assuming this to be so, how stands the plaintiff's case? He seeks to recover on a contract, which provided that the rock was to be excavated two feet below the line of the curbstone grade. The proof shows clearly that the rock excavation was carried to the depth of one foot only below the curbstone grade, and it follows that the contract, in this important particular, was unperformed. The entire performance, on the part of the assignor of the plaintiff, through whom he claims, is a condition precedent to the plaintiff's right of recovery, and to the maintenance of this action. (2 Kent's Com., 693; Smith v.Brady,
The ordinance under which the work was done, provided that the street was to be regulated and graded under such directions as should be given by the street commissioner and one of the city surveyors. The first suggestion to be made in reference to this provision is, that the ordinance would seem to contemplate joint directions by the street commissioner and the city surveyor. The present direction to excavate the rock only to the depth of one foot, would appear to have been given by the surveyor only, without the coöperation of the street commissioner. But a conclusive answer to this view of the case is, that the provision of the ordinance that the work should be done under such directions as should be given by these officers, conferred no authority upon them, or either of them, to change or modify in any essential particular the provisions of the contract made and entered into for the performance of the work. The ordinance of the defendants contemplated that the work was to be done under a written contract. The basis of that contract was the proposal or specification issued by the proper head of department, inviting estimates. When they were received and the award made to the lowest bidder, and that award confirmed by the common council, all the materials for the written contract were provided.
When the contract finally became perfected, signed and executed, no officer of the defendants had any authority to change its provisions unless expressly authorized by the common council. No such authority has been shown in this case, or any acquiescence by the defendants in the departure from the terms of the contract made by the plaintiff's assignor, with the acquiescence and pursuant to the directions of the city surveyor. Such departure had therefore no legal justification, and the plaintiff has therefore himself shown a non-performance, on his part, of what he claims was his contract with the defendants.
But it is apparent that the plaintiff does not intend to place his right to recover upon this ground. By the specification issued by the street commissioner, and which was made part of the estimate of McDonald, and which was in fact incorporated *168 into the contract, the common council authorized the street commissioner to contract only for the excavation of the rock one foot below the grade. When, therefore, the street commissioner inserted in the contract that the rock was to be excavated two feet below the line of the curbstone grade, he assumed to make a contract without any authority whatever. He might as well have attempted to bind the defendants to pay for rock excavation ten, twenty, or any other number of feet below the grade, as for two feet. The specifications called only for excavation of rock one foot below the grade. The estimate was for the work called for by the proposal or specification, and the common council only authorized the street commissioner to contract for the work thus proposed and estimated for.
It is apparent that the plaintiff's assignor and the city surveyor both supposed that the specification and the estimate were, in fact, the contract which was to govern in this respect, and therefore the rock was only excavated to the depth of one foot below the grade, as called for by them. For the surveyor testified, on the trial of this action, that the rock was only excavated to the depth of one foot by his direction, and that such directions were given in conformity with the specifications issued by the street commissioner, and which the contractor had in his possession, and under which he was working. These specifications under which the plaintiff's assignor did the work, were then regarded as the real contract between him and the defendants. This, we think, was clearly correct, and that the modification contained in the written contract of October 21st was nugatory and void. The specification or proposal had been incorporated into the estimate, and it was before the common council when they authorized the contract to be made. It was specifically incorporated into the contract which was made, and its provisions must be held to be the controlling basis of that contract, and that the street commissioner had no authority to make any other contract with McDonald, or to change or modify any of the provisions of the proposal after the same was ratified and confirmed by the common council. It was his duty to have conformed to the directions of the *169
defendants. A contract, made in compliance with such directions, was binding upon them, as was said by this court in Brady v.The Mayor, c., of New York (
Courts of justice have no authority to make contracts for parties, but when their aid is invoked to enforce them, it is the first duty incumbent on them to see that the party seeking their interference has complied with the terms of the contract on his part. The present is a clear case of non-compliance, in any aspect in which it may be regarded, and on the authority ofSmith v. Brady (supra), the plaintiff cannot maintain this action. The judgment of the Supreme Court is therefore affirmed, with costs.
The court put its judgment upon the ground that a written contract having been made, variant from that arising from the proposal and specifications, which alone was authorized by the defendant, the work could not be held to have been performed under any contract, but was done at large; and that there was no ground for a quantum meruit, as there was nothing from which a request could be implied to do the work otherwise than according to the authorized or the substituted contract. All the judges concurring,
Judgment affirmed.