25 A.D.2d 843 | N.Y. App. Div. | 1966
Judgment in favor of defendants dismissing complaint after nonjury trial unanimously modified, on the law and on the facts, to reinstate the second cause of action relating to the storage battery and battery charger, sever, and remand the same for trial to assess the damages thereunder, and otherwise the judgment is affirmed, without eosts or disbursements to any party. In this action to recover damages for breach of contract under a subcontract for failure of defendant general contractors tq supply certain equipment, an ambiguity exists as to the meaning of “ station piping ” expressly excluded from the specifications defining the obligations of the electrical equipment supplier. In consequence, extrinsic evidence of the meaning of the term was required and received. On the merits and because the determination of the officer in charge of construction was conclusive as to questions of faet and mixed questions of faet, under the subcontract and applicable statutes, the first cause of action was properly dismissed (U. S. Code, tit 41, §§ 321-322). With respect to the storage battery and battery charger a different situation is presented. These items of equipment were not expressly denominated in the exclusion and were contained in the specifications (yellow sheets) primarily addressed to the electrical equipment supplier. The argument is made by defendants that the items were nevertheless excluded from the obligations of the electrical equipment supplier (and therefore imposed as obligations on plaintiff subcontractors) because the purchase qrders (pint; sheets) submitted with the specifications and eaeh made an integral part of the other did not include these items, from which the subcontractors must have known that they would have the obligation to supply the questioned items. The argument is insufficient. In the first place, one may conclude as a matter of law that the subcontractors had the right to rely on the completeness of express and unambigu
