188 A.D. 547 | N.Y. App. Div. | 1919
This is an action for damages for the breach of a contract executed in writing by the parties on the 22d day of March,
Plans, without specifications, were prepared and submitted by the defendant to the plaintiff for approval. He approved them conditionally by a letter under date of July 6, 1916, in which he stated “ they seem all right and I approve them but of course the specifications have not yet been submitted to me, as
The breach of the contract charged in- the complaint is the failure of the defendant to file the $3,000 bond, and it is alleged that the defendant had declared his inability to perform the contract and general damages are demanded in the sum of $325,000. The complaint proceeds upon the theory that it was the duty of the defendant to furnish the bond immediately upon the approval of the plans and specifications by the plaintiff and before they were approved by the building department; and it contains no allegation with respect to the approval of the plans and specifications by the building department. It was verified on the ninth of October, which was only a few days after such approval by the building department. The defendant interposed a counterclaim for the specific performance of the contract with respect to the execution of the lease, alleging due performance on his part and a tender of the $3,000 bond, and that the plaintiff refused to accept the same and thereby waived the requirement of the contract with respect to the bond and refused to permit the defendant to proceed with the alterations and thereby waived the provision of the contract in regard to the architect’s certificate that the work had been performed in accordance with the plans and specifications as a condition precedent to the execution of the lease. The plaintiff replied to the counterclaim and the issues raised by the counterclaim and the reply were tried at Special Term and the counterclaim was dismissed, with costs. On the trial the court found, among other things, that the defendant was guilty of a breach of the contract in failing to file the bond for $3,000 within the time required by the contract or within a reasonable time thereafter, and that the plaintiff did not waive such breach' or failure. Those findings and the legal- conclusions based thereon are, I think, erroneous. It cannot be that the parties contemplated that a bond was to be furnished for the faithful performance of the work until it was definitely known that the parties had materially agreed with respect to the work to be performed and by the approval of the
The learned counsel for the appellant contends that the court erred in dismissing the counterclaim and should have decreed specific performance to the extent of requiring the execution of the lease freed from any obligation on the part of the defendant to make any expenditure for alterations. We do not deem it necessary further to discuss the evidence relating to the issues presented by the counterclaim and reply. Counsel for the plaintiff in support of the decision dismissing the counterclaim contends that in no event could specific performance be decreed for the reason that the plaintiff never approved the plans and specifications as altered and approved by the building department and never consented to the performance of the work in accordance therewith. The decision could be sustained on the other grounds but I am of the opinion that this point is unanswerable, and that it is fatal both to the defendant’s right to recover on the counterclaim and to the plaintiff’s right to recover damages. There is nothing in the contract to indicate that the parties apprehended that the building department would make any material alterations in the plans and specifications which they had agreed upon, but they realized that the plans required the approval of the building department. They did not intend by the contract to confer authority on the building department to extend their respective contractual obligations. It was not competent for the building department to bind them by
If the plaintiff were entitled to recover damages the verdict could not be sustained for it was directed for the difference between the amount of the rental the defendant would have been obliged to pay under the lease and the amount to be received by the plaintiff under a materially different lease of the premises executed to another party on the 27th day of February, 1917, for a possible period of twenty-one years, but for a definite period of only five years, and which pro
I am of the opinion, however, that the defendant’s motion to dismiss the complaint should have been granted for the reason already stated. Counsel for appellant does not so contend, doubtless for the reason that he would thereby waive the counterclaim. But the point is presented by the record and must be decided. No recovery of damages could be had by plaintiff without showing that the minds of the parties met with respect to the approval of plans and specifications under which the work could be done under the law and this would require an allegation and proof that the plans and specifications as approved by the parties were approved by the building department or were such that under the law the building department could be compelled to approve them. In lieu of the findings and conclusions of law made at Special Term with respect to a breach of the contract by defendant in failing to give the bond and to there having been no waiver of such breach, which are reversed, there should be inserted appropriate findings and conclusions in accordance with these views.
It follows that the judgment and order, in so far as it dismisses the counterclaim, should be affirmed, with costs as
Clarke, P. J., Smith, Merrell and Philbin, JJ., concurred.
Judgment, so far as it dismisses counterclaim, affirmed, with costs as allowed at Special Term, and complaint dismissed, with costs to appellant of the jury trial and of the appeal. Order to be settled on notice.