Callmeyer v. . Mayor, Etc., City of N.Y.

| NY | Dec 1, 1880

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This controversy was correctly decided by the courts below. There is no mistaking the true nature of the contract between the plaintiffs and the city of New York. It was not an agreement for the delivery of a definite and fixed quantity of material, which the city was bound to receive within the stipulated time, but merely a contract, entirely flexible as to quantity, to deliver such and so much as the city through its appointed agent during the six months should require. That in the specifications the probable amount thought likely to be needed was stated, guarded with the qualification of "more or less," does not change the construction. If the precise purpose might have been more fully and unequivocally expressed, yet the character and scope of the contract, its very terms and conditions, indicate plainly its meaning. The published proposals issued to contractors by the department of docks, which were entitled "Proposals for furnishing screw-bolts and other iron material," contained a distinct provision that the "period of the contract was for six months, and the material must be delivered as called for by the requisitions of the treasurer." The proposals further contained the provision that "any bidder for this contract must be known to be engaged in and well prepared for the business, and must have satisfactory testimonials to that effect." The object was to deal only with somebody capable, by his situation and surroundings, of delivering the class of material needed, in uncertain quantities and at varying times, and to deprive of any force or justice exactly such a claim as is made in this complaint; that the plaintiff prepared himself specially for this contract-work by buying iron necessary for its completion and retaining for that purpose men, machinery and power, so that grave injury resulted because the whole estimated quantity was not taken. Then in the contract itself the quantities are stated as "more or less," and it is "agreed that the delivery of the material shall be commenced at such time, carried on in such quantities and delivered at such points as shall be directed by the treasurer." It is further stipulated that the material shall be furnished "according to the specifications and the requirements of the treasurer under them," and that "payment shall be made on the certificate of the engineer that the quantities have been delivered as per requisition and in accordance with specifications." Taking into view all these provisions, and the manifest aim and scope of the contract, it is clear that the plaintiff was to deliver and the city accept only what was needed by the department of docks, and called for by its official requisitions. Thus understood, the case is like Harrington v.The Mayor, etc. (10 Hun, 251, affirmed 70 N.Y. 604" court="NY" date_filed="1877-06-12" href="https://app.midpage.ai/document/nicholson-v--waful-3590724?utm_source=webapp" opinion_id="3590724">70 N.Y. 604), and is decided by it. There are some differences between the contract in that case and the one under discussion, to which our attention is called. In the former the language of the specifications was, "quantities estimated as follows." The absence of the word "estimated" from the contract before us is not at all a material difference. The use of that distinct word could hardly have made the interpretation more certain. We are referred to the construction put upon the phrase "more or less," in relation to quantities of land described in a deed. (Belknap v. Sealey,14 N.Y. 144.) In those cases the phrase was restrained and limited, it is true, but only to correspond with the manifest intention of the parties. That intention here is also to be the guide to our interpretation, and leads plainly to the result that the phrase was used to indicate an estimate merely, and that the plaintiff contracted to furnish and the city was to receive such quantity of the prescribed material as the department of docks should need and by official requisition demand during the specified continuance of the contract. For the quantity thus delivered the plaintiff has been fully paid, except as to a small sum which he was allowed to recover in the court below.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.