202 A.D. 27 | N.Y. App. Div. | 1922
For convenience, and because the interests of neither party will be prejudiced thereby, we will consider the two cases together. When necessary to distinguish one from the other, we will call the first the company’s claim or case and the second the receiver’s claim or case. The two claims are substantially identical, arising under the same contract and presenting the same items. Most of the items of the claims are based upon alleged breaches of the contract on the part of the State. The principal defense is that the company broke its contract when it refused to continue performance under alteration No. 7, and whether or not the company did so break its contract is the chief question in each case.
Chapter 147 of the Laws of 1903 provided for the borrowing
“ 7. It is mutually agreed that the State reserves the right until' the final completion and acceptance of the work, to make such additions to or changes in the plans and specifications covering the work, as may be necessary, and the Contract shall not be invalidated thereby, and no claim shall be made by the Contractor for any loss of profits because of any such change or by reason of any variation between the quantities of the approximate estimate and the quantities of the work as done.”
The statute provided limitations and requirements which must be observed in the expenditure of the public funds borrowed, and the terms of the statute and of the contracts entered into thereunder may not be disregarded. (Belmar Contracting Co. v. State of New York, 233 N. Y. 189, 194.)
The only question presented by the appeal in the company’s case is whether the Court of Claims was right in holding that the contractor had broken the contract by refusing to comply with alteration order No. 7. By order of this court the appellant was permitted to amend its notice of appeal in such manner as to limit the appeal to this question. It has printed in the record such parts of the evidence as bear upon this question and has eliminated all other evidence, presenting a record similar to a bill of exceptions. The exceptions taken to the'findings of the Court of Claims present this one question and the appellant argues no other question.
When alteration order No. 7 was made the contractor had performed about seventy per cent of the work under the contract. Six important alterations had been made, assented to by the contractor, and it performed under the plans and specifications as so altered. In the spring of 1908 the State considered it necessary to make alteration No. 7. There were conferences and communications between the representatives of the State and the company, extending into the spring of 1909, concerning prices for the work under the proposed alteration. These prices were not agreed upon and alteration order No. 7 was duly made in accordance with the requirements of the statute and the contract and served upon the contractor.
After the letter of April twenty-third from the company to the State Engineer there is no mention on the part of the company of the prices to be paid and no complaint based upon that ground. In the subsequent letters, in the notice of intention to file a claim, in the claim and the amended claim, the company took the position that the alterations required such a radical change that the State was not authorized to require the contractor to perform and this was the position to which the State must make reply.
Alteration No. 7 provided for a change in the plans for an
The appellant, however, now takes the position in its exceptions and notice of appeal that it refused to perform because the compensation named in the order was inadequate. This is a wide departure from the statement in its claim filed, but deserves consideration. In the alteration order is the-following: “ The prices to be paid by the State and received by you as full compensation for all items of work done and material used under this order are the same per unit of measure as the ones already fixed by this contract.” The liability of the State depends absolutely upon the written contract. Without a written contract there could arise no liability. With the written contract there can arise a liability for damages when the contractor has performed according to its terms, but the State has not performed, and then only. This contract was carefully drawn in strict compliance with the statute. It is the standard and measure of liability on the part of the State to the claimant. The parties contracted that the State could
We conclude that the one ground on which the appeal in the company’s case rests is untenable and proceed to the appeal in the receiver’s case.
The decision that the company broke its contract disposes of all those items which were disallowed by the referee except item No. 12. These items consist of claims for damages alleged to be due to delays occasioned by, and interference with the work by, the State; that is for damages for breaches of the contract by the State. This is the plain unequivocal charge in the statement of the claim for these items. When these breaches occurred the contractor did not refuse to perform, nor did it choose to consider itself discharged thereby from its obligations; but it continued its work, completed the alterations and the State paid for all work done by it prior to its breach of the contract. The
The referee has allowed items Nos. 1, 9, 10 and 19. We find no reason for comment as to items 9, 10 and 19. They are claims for extra work; and, for the reasons given by the distinguished jurist, the referee herein, we approve his conclusions.
Item No. 1 is to recover the ten per cent retained by the State as security out of the funds due the contractor for completed work on monthly estimates under the terms of the contract. The State does not contest this item. It admits the money has been earned by and belongs to the company, subject only to such counterclaim as the State may have against the contractor. The State’s counterclaim is for that part of the cost of completing the work after the cancellation of the contract in excess of the cost that would have been incurred had the contractor completed at the unit prices. We have held that the unit prices are not applicable, and that the compensation for the work under alteration order No. 7 should be the fair and reasonable value of the work. There is no proof that the cost under the contract as relet was not the fair and reasonable value of the work. We think the fair inference is to the contrary. We, therefore, approve the allowance of item No. 1, and the disallowance of the State’s counterclaim.
The cancellation of the State’s contract was accomplished in compliance with the terms of the contract and the Barge Canal Act (Laws of 1903, chap. 147, § 7, as amd. by Laws of 1909, chap. 267), but, if we are right in our conclusion that the company broke its contract when it refused to perform under alteration order No. 7, there is no occasion for considering the effect of the cancellation.
We do not think there is merit in the claim of the appellant
The judgment in each case should, therefore, be affirmed, with costs.
All concur, except Kiley, J., dissenting and H. T. Kellogg, J., not voting.
Judgment in each case affirmed, with costs. 3