93 N.Y.S. 754 | N.Y. App. Div. | 1905
Lead Opinion
. The plaintiff filed a lien upon'an amount due to the defendant Masterson under a contract by which the plaintiff was to supply to Masterson certain iron pipe to be used by him in the performance of a contract with the city of New York. The plaintiff, after furnishing some pipe under the contract for which it was paid, refused to complete the contract upon the ground that the inspectors appointed by the city to inspect the pipe before delivery had acted unjustly and arbitrarily in rejecting pipe that the plaintiff proposed to deliver, and stated that it would not continue supplying the pipe under the contract unless this complaint was remedied. After considerable correspondence Masterson gave the plaintiff notice that, unless it complied with its contract within a specified time, he would procure the pipe elsewhere, and the plaintiff not complying with this notice, Masterson procured other pipe and so completed his contract with the city. After this notice was given the plaintiff shipped certain pipe to Masterson which he declined to accept, and it was to recover for this pipe so shipped that this action was brought.
The contract between the plaintiff and Masterson was dated December 24, 1900,and recited that Masterson had, on the 16th day of November, 1900, entered into a contract with the city of New York to furnish and lay certain cast iron pipe and special castings, all as set forth in the specifications in said contract between the city and Masterson specifically referred to, and that the plain-. tiff agreed to furnish and deliver to said Masterson “ One-third (-J)
On the 3d of January, 1901, Masterson inquired of the plaintiff’s agent when the plaintiff would be' ready for the inspector of pipes,, and the plaintiff’s agent answered that it would require the inspector-in one or two weeks. Subsequently, on January 15, 1901, the-plaintiff wrote to Masterson, saying that it would be ready for-the inspector on the seventeenth. Shortly after the plaintiff commenced to complain of -the inspectors, and stated that the experience that it had had with this inspector in the past was such as-to warrant it in strongly objecting to his selection for this part of the work; that it was impossible to make pipes which were absolutely perfect in all points, and that the inspector referred to, on previous work, made it a practice to reject thoroughly good pipe fully coming up to the spirit of the specifications, and pipes that would be accepted by other inspectors. Again, on January 24, 1901, the plaintiff asked whether Masterson had been able to secure “ satisfactory inspection.” And on January twenty-fourth Masterson wrote to the plaintiff to say that he hoped to be able to give definite information in regard to having the inspector transferred. Again, on February twenty-sixth, Masterson wrote to the plaintiff stating that he had endeavored .to obtain instructions for the inspector to accept certain pipes which he had rejected. On September 18 and 23, 1901, the plaintiff again' complained that certain of its pipes had been rejected for unimportant defects, and that the work had been stopped because of impracticable inspection. During all this time Masterson was insisting upon the plaintiff’s complying with its contract; that he had not the control of the inspector, and that.
In July and August, Masterson was insisting, upon the plaintiff-complying with its contract, and complaining of lack of pipe ■required for the work, to which plaintiff replied by constant complaint as to inspection, with promises to ship the pipe; and finally, on September 16, .190.1, the plaintiff wrote .the defendant: “We have been doing our utmost to furnish the needed castings on your order in spite, of most unreasonable, retarding and exceedingly ■costly Inspection. Rejections of large expensive pieces have been made steadily, for most trivial reasons, until now we are compelled to advise you Jhat until ,the difficulty is remedied, we shall’ be obliged to cease making any further pieces, either of specials or of pipe. It is impossible to work under the unprecedented treatment which we have suffered under this present inspection. * * * In the face of this experience we are helpless and we are compelled, therefore, to write as above that we cannot proceed under such experience.” In - answer to - this letter, on September., seventeenth, Masterson wrote the plaintiff : “ Answering your letter of 16th, regarding inspection we submitted your letter this a,,, m. to the Department ■ and were informed that- the trouble lies in the' pipe and castings which do not come, up to the requirements. Now of course We have done what we could in this matter previously and how, but can accomplish little. You state you shall be obliged to cease making the pipe and specials, and this Mull place us in a bad position as we need the specials in the.worst way as you are aware.. Can you not hurry the^36" pipe and 24" curves as per our telegram. ? These are essential to further progress in the work on the first section.” On November 19, 1901, Masterson wrote the plaintiff that he had not received a shipment of straight pipe since October second, and asking if the plaintiff had cast any since, as lie, would like to know how .the matter stood; and on- November twentieth the plaintiff Mu-ote , to Masterson: “We note your esteemed favor of the 19th as to 48" B. & S. pipe. We. wrote you that the inspection under which we have been compelled',to work had become unendurable, and we 'declined to make any more pipe until we could be kssured of fair and reasonable treatment. We have awaited the action of the(
, It was proved on behalf of the defendant that the last delivery that was made by the plaintiff of any straight pipe was on October 2, 1901; that- there was some special sent after that, but no straight pipe delivered, and there was no attempt to comply with this notice of December 4, 1901, by the plaintiff until the latter part of December. There is no dispute but that the plaintiff, prior to its letter of November twentieth, had stopped work under the contract, had refused to make any more castings until an inspector was appointed who would meet with its views as to the sufficiency of the pipe, and then stood on its notice that it would refuse to further comply with the contract. The necessities of the situation required that Masterson should obtain pipe to complete his contract with the city, as he was under very severe penalties for a failure to comply with it, and immediately after the letter of December fourth he endeavored to secure pipe from other foundries, and finally succeeded in February in making a contract under which pipe was delivered and used. The inspectors who had acted on behalf of the city were called and testified as to the inspection. They testified
The principle stated in Montgomery v. Mayor (151 N. Y. 249), I think, applies. That was an action by contractors against the city for damages sustained in consequence of the arbitrary acts of the inspector in refusing to accept materials which the plaintiffs contended were a compliance with the contract, but which the inspector had declined to pass. In affirming a judgment for the defendant in that case the court said: “ The effect of these provisions was to vest in the inspector a right or capacity to pass upon the performance of the work, which came very near to constituting him, as • between the parties, the judge as to that matter. The plaintiffs’ ' cause of action for damages is based upon an increased cost of the work, alleged to be due to' the action of the inspector in delaying' the work, through his rejection of. materials which were in accordance with the plans and specifications. The plaintiffs’ evidence" shows that the inspector frequently did reject the pipe and cement intended to be used, and, possibly enough, that he was very arbitrary in doing so. * * * It may be true that his objections were not sound, and perhaps his superior officers should have listened more indulgently to the plaintiffs’ complaint concerning the inspector’s action. But, assuming the truth of all this, we fail to see how any cause of action has arisen against the city for these damages. It would be very extraordinary, and we think it would constitute an unsafe precedent in future cases, if contractors with the city under these contracts could maintain actions against it for damages, where the execution of the work contracted for was delayed, upon the ground that the delay was caused by the officers ■ who, by the force of the contract, were invested with the power of supervision.”
While in this case the plaintiff was not executing a contract made between itself and the city, it was proceeding to supply to a city contractor pipes which were to be used under the contract with the city, with knowledge - of the fact that before Masterson could use these pipes they would have to be accepted by the city’s inspector who, under the contract between Masterson and the city, was given authority to pass upon the quality of the pipe to be used in the per-
Whether or not this inspection was arbitrary or unnecessarily severe is not the question ; and the testimony which w.as excluded" by the court was entirely immaterial in determining the question at issue, for, upon the undisputed testimony;, the plaintiff gave notice to Masterson that it would refuse to proceed further with its contract, and Masterson' acted upon that assumption, treated the contract as terminated and proceeded to obtain the pipe necessary from other parties. I think that Masterson thus acted clearly within his right, and that the plaintiff had nó cause- to recover for the pipe subsequently delivered.
My conclusion is that the. judgment appealed from’ should be affirmed," with costs.
McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., ’ and Patterson, J., dissented.
Dissenting Opinion
This action was. brought to foreclose a mechanic’s lien'filed by the plaintiff against the- city of New'York; William’IT. Masterson, a contractor with the city; Thbmas.J. Dunn , and John H. Deeves, sureties upon a bond given under the statute to remove the lien and as security to the plaintiff for its claim. After the trial, judgment was entered upon a decision of .the court dismissing the complaint, canceling the lien and directing judgment in favor of the defendant William H. Masterson against the plaintiff upon a counterclaim. [It was stipulated on the trial that no liability rests, upon the city of New York, and consequently that defendant has no further interest, in the litigation.' The contest is, therefore, between the plaintiff and the other defendants. The contract between Master-son and the city was for the furnishing, delivering and laying of a
That the plaintiff did not deliver pipe to Masterson in accordance with the terms of its contract is-clear, but we are not able to conclude from the evidence that Masterson is entitled to recover damages for mere delay. ■ There is in the record enough to indicate that the failure to deliver from time to time was a matter which the ' parties regarded as something not insisted upon by Masterson arid possibly waived by him. The real controversy relates to the plain
The relations established between the plaintiff and Masterson by their contract are plain. The plaintiff in no way bound itself to .all the terms and conditions of Masterson’s contract with the city. It agreed to manufacture one-half the pipe and a certain portion of the special castings. Nevertheless, it was bound to f urnish such pipe as complied with the specifications of the contract between Masterson and the city. Its contract with Masterson required that all the pipe and special castings should be made in accordance with the specifications and plans of the department of water supply. The specifications of the contract require that the castings “ shall be free from scoria, scabs, cold shuts, sand holes, blow gates, gate shrinks, checks and core cuts, together with any and all imperfections caused by cracked or crushed cores, or other defects or imperfections caused by improper materials or manipulation.” The contract between Masterson and the city provided that pipe to. be furnished should be inspected by inspectors appointed or . selected by the city of New York, and it recites, as. before remarked, that “ each pipe while under the required pressure shall be rapped with a hand hammer from end to end to discover whether any defects have been overlooked. Any pipe or special casting which fails under this test shall be rejected. This inspection and test shall be made at the foundry under the direction of the Inspector and at the expense and risk of the Contractor.” It also provides for a final inspection of the pipe and special castings after delivery on the line of the work, and that the approval of any pipe or casting by the inspector shall not prevent its rejection if any imperfection shall be discovered at any time before the final acceptance and payment for the entire work included in the contract. Although the plaintiff was not bound by all the terms of the contract between Masterson and the city, its officers understood that the articles to be manufactured and delivered by them under the contract with Masterson were to be subject to the inspection provided for in his contract with the city. The best evidence of that is, that the plaintiff acted upon that understanding and placed its reply to the counterclaim of Masterson upon the ground that the inspection by the city inspectors of its product was not made in good faith and that much of
It is urged by the. respondents that the refusal of the city inspectors to accept the pipe would not justify the plaintiff in refusing to perform its contract. We are of opinion that it would. Misconduct of the inspectors amounting to bad faith would certainly have been an excuse to Masterson (Gearty v. Mayor, etc., of New York, 171 N. Y. 61), and the same rule should apply between'the plaintiff and the defendant. The contract, although not based in express terms upon city inspection, was construed and acted Upon as requiring the plaintiff to submit to that inspection, and under the reply of the plaintiff to the counterclaim and the proof as made it is immaterial that a provision to that effect was not inserted in the sub-contract.
The facts in connection with the refusal of the plaintiff to complete the contract with Masterson are, in brief, the following : On January 15, 1901, the plaintiff notified Masterson that it was ready for the city inspectors / they went to the plaintiff’s factory early in
From all this evidence we think it is established that there was a breach of the contract on the part of the plaintiff after December fourth which justified Masterson in procuring the balance of the pipe from sources other than the plaintiff, unless the plaintiff had a valid excuse for its default. Masterson was not bound to look to •* such other sources of supply until it was definitely ascertained that the plaintiff would not proceed with its contract. The excuse consists in the alleged Unfairness and bad faith of the inspectors. The question then remains of the character of the inspection made by the city inspectors. Was it so Unreasonable and unfair as to justify the plaintiff in the course it pursued respecting its contract? The inspection was made at the factory of the plaintiff by three inspectors, Bennett, Bates, and .Samuels, who were witnesses called by the defendant Masterson. Bennett was a “ superintendent inspector-.” . He testified that he inspected nearly all the pipe manufactured by the plaintiff after April'tenth, and that he found defects therein; and that “ none of these pipes that I rejected were" frée'from some-'of • the defects that are mentioned in Section 90 of the contract.”. Bates, another inspector, testified at great 'length as to the finding ‘ of ' defects in the pipe; that some he could see with the naked eye, and" that he would then "test them with the hammer to discover how deep or extensive they Were. Samuels, another inspector, who accompanied Bates, also testified to the inspection and the use O'f the hammer, and that the pipes rejected had defects. ■
On all the evidence upon the subject of inspection, there - arose a disputed question of fact. Although no precise finding was made upon that question by the trial judge, he must "have resolved it in "favor of' the defendant Masterson, and under the proofs we would' not feel justified in reaching any other conclusion; but there are two erroneous, rulings of the court in the rejection of evidence offered by the plaintiff which should have been allowed- on the issue of the character of the inspection. The obvious intent of the plains
-Again, the court excluded the testimony of expert witnesses by whom the plaintiff intended- to show that the inspection was unusual, improper and unfair and that, by the use of the hammer, pipe "which fully conformed to the specifications were disfigured and in. some cases destroyed by the inspectors. ' It is stated in the record that in order to prevent the waste of time that would be occupied in interrogating the witnesses who were in court, the admissibility ■ of the evidence was considered on an -offer of proof. The court declined to take the testimony of these witnesses,- sustaining an objection of counsel for the defendant Masterson that the plaintiff was bound 'by the inspection just as Masterson was. The plaintiff - insisted upon its right to call the witnesses for the purposes above o stated; and- the court said that it would not permit the plaintiff to' offer proof of anything except fraud, corruption or bad faith on the part of the inspectors. We are of opinion that the plaintiff had the right to show that the inspectors were acting ignorantly and wantonly in disregard of proper inspection, as required by the specifications. The offer of the plaintiff included proof not only, that the inspection was improper but that it disfigured and destroyed the pipe and that the rejected pipe in “a vast majority of cases com formed to the spécifieations.” It is claimed, however, by the defend- ,
The judgment should be reversed arid a new trial ordered, with • costs to appellant to abide the event.
Yah Bbtjnt, P. J., concurred.
Judgment affirmed, with costs.