270 A.D. 9 | N.Y. App. Div. | 1945
Lead Opinion
Appeal by the claimants, copartners, from a judgment of the Court of Claims dismissing on its merits their claim for the reasonable value of the work and materials which they furnished under a contract approved by the State Department of Public Works on May 28, 1936, which had been earlier approved by a representative of the United States Secretary of Agriculture. The value of the labor and material is asserted to be $720,314 upon which $343,620.31 has been paid. The contract for labor and material, for which $900,013.40 was to be paid, required the work to be completed December 15, 1936. For this sum claimants were to furnish materials, appliances, tools and labor for the construction of the Henry Hudson Parkway and Riverdale Avenue grade separation structures. The entire length was .79 of a mile, connecting Riverside Drive in New York City with Saw Mill River and Hutchinson Parkways in Westchester County. There were four parallel lanes of highway, the most easterly and westerly for the north and south bound traffic which formerly passed over Riverdale Avenue, and the two center lanes for the north and south bound traffic over the Henry Hudson Bridge which connected the Drive and the Parkways. Two bridges also were to be constructed. The State authorities desired to open the highway for traffic on December 12th, and in late November, Commissioner Brandt of the State Department of Public Works visited the location. He says: ‘‘ The weather had become such at that time that I do not think he could have laid concrete pavement. That is the reason we laid the temporary bituminous pavement. Q. You did tell him to do it, whether he could or not? A. Yes.” The highway was open for traffic on December 12th. The supplemental contract for the bituminous pavement was dated December 21, 1936, but the work was started nearly a month earlier, and was not fully completed until about December 28th. On December 29th, the State gave a ten-day notice to claimants to complete the entire work, and canceled the contract on January 9th. Later the unfinished portion of the work was let to another contractor who completed it in November, 1937, and apparently at a cost within the original contract figures made with claimants, as no counterclaim was set up by the State in this trial.
The conduct of the State amounted to a waiver of the time of completion as-fixed by the contract; to that extent time ceased to be an essential element, and it could only be restored by notice fixing a reasonable time within which the contract" was to be completed. (Lawson v. Hogan, 93 N. Y. 39; Schmidt v. Reed et al., 132 N. Y. 108; Taytor v. Goelet, 208 N. Y. 253.) In view of the correspondence, the conduct of the parties and the amount of work remaining, ten days was not sufficient time within which to complete the work, and it appears that reasonable progress was being made by claimants. Earlier unexcused delays had been waived by the tacit agreement that the completion" date should be extended. The restoration of the time element in the contract could not be effected by an arbitrary and unreasonable requirement. Under the circumstances here presented, the law does not demand that these claimants should suffer a loss of tens of thousands of dollars for their inability to complete within the limited time allowed by the State. (Taylor v. Goelet, supra.) “ The conduct of the parties, while the delay continues, may be such as to indicate a purpose to.
It is conceded and found by the Court of Claims that claimants performed work of the contract price of $396,774.19 before they were put off the job on January 9th; that $53,153.98 of that sum has not been paid. Claimants are entitled to this amount. It appears that 10% of the value of labor and materials is fair and reasonable for superintendence, overhead, maintenance of traffic on highways, and like items. This amounts to $39,677.42. Claimants should recover these amounts with interest from January 9, 1937.
Dissenting Opinion
I dissent. To my mind the court below correctly determined that the weight of evidence clearly established that claimants breached their contract with the State in failing to progress their work thereunder as called for thereby, and that because thereof, their contract was lawfully and properly canceled as authorized thereby and by section 10 of the Highway Law. The clear weight of evidence sustains the finding that the State, did not waive claimants’
Notwithstanding that claimants made and tried their claim in quantum meruit, thereby rejecting the contract as a basis of recovery, some of their appeal here is for an award upon claimed unpaid estimates and retained percentages. Such a claim must necessarily be based upon the contract. In addition to the inconsistency of such a claim upon the record before us, it is to be noted that there were provisions in the contract which bar such an award and further, that a defaulting contractor may not recover for the value of work done under an indivisible contract, which theirs was, in the absence of a showing of their substantial compliance with its entirety. (Steel S. & E. C. Co. v. Stock, 225 N. Y. 173; Smith v. Cowan, 3 App. Div. 230, affd. on opinion below 157 N. Y. 714; Smith v. Brady, 17 N. Y. 173; Champlin v. Rowley, 13 Wend. 258.) Moreover, as is pointed out in the opinion below, “ Claimants recognized this variance in that they did not in their requests to find ask for the amounts of the estimates ” and that: “ Also the State may have had some defense to an action based on the contract which was not presented in its defense against the claim for the reasonable value of the work done.”
All concur with Hill, P. J., except Brewster, J., who dissents in a memorandum.
Judgment dismissing claimants’ claim upon the merits is reversed on the law and facts, with costs and disbursements to the claimants, and judgment for the sum of $92,831.40, with costs and interest from the 9th day of January, 1937, is awarded claimants.
The court finds the value of the work done to be as found by the Court of Claims in claimants’ requests to find, numbered 50, and the payments made to be as therein stated and found, also as found in the decision of the Court of Claims by its paragraph numbered 73. The court further finds all of the findings contained in claimants’ requests to find which were found by the Court of Claims, and the following findings in claimants’ requests to find which were refused by the Court of Claims; Nos. 15,16, 21, 22, 25, 29; 30, 31, 44, 47, 53, 54. This court further finds that claimants are entitled to recover the $53,153.98 as the value according to contract prices of the work done prior to January 9, 1937, and 10% of $396,774.19 to compensate for overhead, superintendence, keeping highways under construction open for traffic, and other items not included in the contract, in all the sum of $92,831.40 with interest as earlier stated.
The court reverses the following findings made by the Court of Claims in the decision: Nos. 21, 22, 23, 26, 27, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 45, 49, 52, 53, 55, 56, 57, 58, 62, 64, 65, 66, 67, 69, 70, 71, 75 and 76, and disapproves of the conclusions of law contained in the decision.
The court also reverses the following findings made by the Court of Claims in the document printed and headed “ State’s Requests to find ”: Nos. 7, 12, 13, 14, 15, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30 and 33, and disapproves the conclusions of law made and found by the Court of Claims in the document entitled “ State’s Requests to find.”