205 N.Y. 342 | NY | 1912
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *347 I think that no cause of action was made out and, therefore, that the complaint should have been dismissed. The contracts, into which the plaintiff's assignor entered with the city, were explicit in their terms and as complete in the expression of the respective agreements of the parties as language could well make them. The parts, which have been referred to in the foregoing statement, have been taken as exemplifying the fullness with which the municipal officers sought to have the obligations of the city and of the contractor defined and to guard against any claim for extra compensation. Following the command of the charter, they advertised for proposals to do the work and published the form of agreement to be executed; so that there might be no misunderstanding as to the results demanded by the city and the extent to which it might be bound to compensate. Indeed, the plaintiff, notwithstanding allegations in his complaint of misrepresentations with respect to the condition of the roadways, which were to be *349 paved, rests his right to recover damages, measured by the reasonable cost of the removal of the rock found above the sub-grade line, upon the theory of a breach by the defendant of the paving contracts. This breach, he contends, arose "from the wrongful direction of the defendant, its officers and agents, requiring the plaintiff's assignor and the plaintiff to excavate rock, which was not included in the terms of the contracts." Again, to be particular with respect to what he contends for, he asserts his claim to be that the contracts "made no reference, and had no relation whatsoever, to any grading work and that the City fairly represented to him and his agents that the grading work had been fully performed, and that from suchrepresentations, consisting in the appearance of the roadways,which were to be paved, the terms of the proposals and contracts,and the plans therein referred to, and the public records of theCity, exhibited to him, he was justified in assuming that the rock had been theretofore excavated." He admits that he was required by his agreement to remove certain rock; but insists "that the rock removal required would be only such as is usually to be included by the terms of such paving contracts as his assignor bid upon, relating to a street, which has been already graded." Thus, the question is made one whether, from the nature of the contract, the description of the work agreed to be performed and the conditions stated as to performance and as to compensation, any agreement was implied on the part of the city, (none is expressed), that the contractor should not be required to do any general rock excavation. Was it the intention of the parties, to be derived from these contracts, that the contractor should only remove what rock might be expected to be left upon a due performance of the prior grading contracts; that is, loose, and not native, rock, lying above sub-grade? If this be the true reading of the contract, then, I think that our language must be deemed *350 inadequate to express the intentions and the agreements of parties. If the agreement is unnecessarily comprehensive in its terms for a contract to regulate and pave a street, already graded, it was, nevertheless, the one advertised for. It is too precise and minute in its requirements to be characterized as ambiguous. The proposals advertised for were to be made upon bidders satisfying themselves "by personal examination of the location of the proposed work, and by such other means as they may prefer, as to the accuracy of the estimates." They were not to "assert that there was any misunderstanding in regard to the depth of the excavation to be made, or the nature, or amount, of the work to be done," and the agreement, which was to be executed, contained a clause in, substantially, this language. The contractor was to agree that he would not demand "for the entire work any extra compensation;" that, in the preparation of the roadbed, "the subsoil, or other matter, (be it earth, rockor other material), shall be excavated and removed to such depth that * * * it shall be sixteen inches below the broken stone when completed;" that "if rock be encountered, it shall be removed for at least three inches deeper" and that "all loss or damage, arising out of the nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties,which may be encountered in the prosecution of the same * * * shall be sustained by the contractor." Finally, the contractor was to agree to receive the prices specified per square yard of the new pavement and per square foot of the new bridge stones, "as full compensation for furnishing all the materials and performing all the labor, which may be required in the performance of the whole of the work to be done under thisagreement." It is difficult to perceive how, if such an agreement, as the one called for by the city, was entered into, there could be any loophole left for a claim for extra compensation, if "rock was encountered" between the surface *351 grade and the sub-grade, or "if unforeseen obstructions" were encountered; or upon the basis of "any misunderstanding in regard to * * * the work to be done." If there is any virtue in a written contract, as the final repository of the intentions and agreements of the parties to it, then, I think we must hold that in these contracts nothing has been left for the work of interpretation. Certainly, so far as it might be claimed that the municipal authorities committed the city to any understanding, or obligation, with respect to the rock which might be found, it would seem to have been covered by these clauses. It might be assumed that, ordinarily, a "regulating and paving" agreement, in the absence of provisions for grading, technically, does not contemplate rock excavation, between the lines of sub-grade and of surface grade, of a graded street, but the assumption is inefficacious, where the actual agreement is so framed as to cover all contingencies, which may arise in preparing a roadbed, as specified. However rigorous these agreements, they are not unjust and they were optional. If, in this case, we should, as we, probably, must, assume that the contractor was deceived by appearances; that is to say, by the appearance of the roadway and by his comparisons of the old plans on file, relating to the prior grading contracts, with those of the contracts he was to estimate upon, he has but himself to blame. He had the opportunity to physically examine the location of the work to be done and if that called for extensive tests, by way of borings and soundings, that fact, however troublesome, was one he must take into consideration. He had presented to him an agreement, which was precise and strict in its requirements and which cast upon him the possible risk that all might not be as it appeared, or as estimated by the surveyor. Admittedly, borings and soundings would have revealed the imperfect performance of the previous grading contract, in the leaving of native rock under the *352 surface of the roadway. The municipal authorities were, equally, deceived, presumably; but, in complying with the statute, by advertising for proposals, they made no representations and they guarded against all misunderstandings and contingencies through the proposed agreement. They had no power to bind the city otherwise and any representations, on their part, in the absence of fraud, (which is not charged), would be quite ineffectual to impair the force of the agreement to be executed.
It is argued that, when bidders were required "to satisfy themselves by personal examination * * * and by such other means as they may prefer," they were entitled, not only to rely upon the physical examination, but also upon the plans for the prior grading contracts and the final certificate of their completion. It should suffice, as an answer, to say that the acceptance by the city of the prior work was not a representation of anything, upon which this contractor was entitled to rely. In determining what would be his obligation, he was to consider, only, the advertisements for proposals, the proposed agreement and the plans and specifications for this work. It should be clear from the context, that the "other means," to be resorted to, related to the ascertainment upon the ground of the accuracy of the surveyor's estimate and to the character of the work of excavation necessary to prepare the foundation of the roadbed. The contractor was to agree not "to assert that there was any misunderstanding in regard to * * * the nature, or amount, of the work to be done." It is insisted that an examination of the profile plans of these contracts, and comparisons with the profile and cross-section plans of the prior grading contracts would show the absence of surface variations and warrant the assumption that all rock had been previously removed. That may well be; but there remained the agreement and its express stipulations warned against assumptions as to matters, which might be verified by local examination. *353 There was no warranty in the contract as to the character of the soil, nor as to the correctness of estimates. The provisions of these contracts were framed to meet the possible event of mistaken assumptions, indulged in from whatever source, and to charge the contractor with the duty of satisfying himself as to the nature and extent of the work, which might be required to regulate and pave the avenues. Excavation to sub-grade was necessary, in order to lay a foundation for the pavement agreed upon, and rock, as well as other substances, had to be removed to the required depth.
So far as the respondent's argument is rested upon the theory of public notice, or knowledge, from the plans on file in the comptroller's office, relating to the prior grading contracts, it need, only, be observed that constructive notice from a record depends, altogether, upon whether it is provided for by some statute. Official files, in the absence of a statutory provision, carry no notice to the public. (See Amer. Eng. Ency. of Law [2d ed.], vol. 24, pp. 77, 141, 144.) There is no analogy to be found with assessment records; for assessments, and entries affecting them and their lien, are matters regulated by statute and the record is constructive notice to third persons. (Curnen v.Mayor, etc., of N.Y.,
To repeat, by these contracts the city did not warrant the correctness of estimates, or plans, and their provisions for agreements on the part of the contractor were such as to charge him with the burden of determining for himself the quantity, nature and extent of the work, for the doing of which he was to bid. The contracts defined the obligations of the city and the respondent *354
points to none, which it has failed to perform. The contractor has suffered what loss resulted from the necessity to excavate rock, by reason of his reliance upon misleading appearances; rather than upon what a careful, physical examination of the roadways would reveal. No representations of city officers misled him. Reliance is placed by the respondent, as in the prevailing opinion at the Appellate Division, upon our decision in the case of Horgan v. Mayor, etc., of N.Y. (
For these reasons, as for those well assigned by Mr. Justice INGRAHAM, dissenting in opinion at the Appellate Division, I advise that the judgment appealed from should be reversed and a new trial ordered; with costs to abide the event.
CULLEN, Ch. J., WERNER, HISCOCK, CHASE and COLLIN, JJ., concur; WILLARD BARTLETT, J., absent.
Judgment reversed, etc.
