120 N.Y.S. 317 | N.Y. App. Div. | 1909
Defendant appeals from a judgment entered upon a verdict and from an order denying a new trial;
The action is for damages for the failure to perform a contract
“New York, Jan. 18th, 1905.
“ The Ferguson Contracting Co.,-
“Mew York:
“Gentlemen.— We propose to furnish you with the cement required for your contract for the construction of Locks, Walls, &c., at Waterford, M. Y., known as contract number 2, providing the said contract is awarded to you, at $1.05 per barrel, f. o. b. cars, in carloads of not less than 106 bbls., Waterford, M. Y., exclusive of package. If delivered in bags the price is to be ten cents each extra for bags, four to the barrel, you to be paid the same price for bags when returned to our works at Howe’s Cave, M. Y., in good order, freight prepaid. For deliveries in barrels add thirty cents to the above price; wood barrels not to be returnable. The cement referred to to be deliverable as required, but not to exceed 1,200 barrels per day. Terms: — For all cement delivered during any month, payment shall be made not later than the 20th of each month for cement delivered during the preceding month. The cement so to be delivered shall be subject to the specifications for Portland Cement as required by the specifications- of the State Engineer, and subject to his acceptance, and shall be sampled and tested according to such specifications. In case the State Engineer will consent tó bin tests we agree to make delivery in that way & to hold bins for not exceeding 60 days nor in amount exceeding 20,000 bbls. Upon awarding of contract it is mutually agreed that we enter into a contract upon above terms.
“Yours truly,
“THE HELDERBERG CEMENT CO.,
“By C. H. Ramsey,
“ Gen'l Sales Agent.
“We hereby accept the above proposition.
«‘THE FERGUSON CONTRACTING CO.,
. “ R. T. Norton,
“ Manager.” '
The State contract was awarded to plaintiff, and' it immediately sub-contracted what was practically the entire job to a firm known as "Woods Bros. & Hamilton, who agreed to “furnish all labor ' and material, and all work, labor, services and material that may be' required.” Of course this included the furnishing of all the cement, for that was an important item of the materials required for this work. Thus the plaintiff, ignoring defendant’s contract to sell and deliver the cement needed for the work, made another contract with another firm to furnish all the material including the cement. It matters not that the plaintiff still remained responsible, as-between itself and. the State, for the. completion of the work. The point is that it elected to procure the cement needed on the work from some one other than defendant, and thus incapacitated itself from using any cement furnished by defendant in the manner and for the purpose specified in the contract upon which this action rests. If defendant had delivered cement plaintiff v/ould have been obliged
The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.