41 N.Y.S. 68 | N.Y. App. Div. | 1896
In the year 1892 the board of supervisors of the county of Queens, by two resolutions, directed the improvement of certain highways in the town of Jamaica, in that county. By these resolutions certain named persons were appointed commissioners to take charge of and superintend such improvements, ■ and the commissioners were authorized to make all necessary contracts for doing the work. The commissioners were directed to prepare plans and specifications and all other instruments in writing, necessary in the course of the work; “ provided, however, that all such plans, specifications, contracts and other instruments in writing shall be submitted to this board for its approval as to form and sufficiency before being signed by said commissioners, and provided further that proposals for the doing of such work shall first be publicly advertised for, as directed . by section 4 hereof.” In pursuance of this authority the commissioners entered into written contracts with the plaintiff for improving .certain highways. The contracts for the several highways were all of the same general form and were entered into in pursuance of advertisements for proposals made by the commissioners and of bids made by the contractor in answer thereto. The advertisement for proposals gave the engineer’s estimate of the quantities and qualities of the work, but expressly stated that the quantities were approximate only and required any bidder to satisfy himself as to the accuracy of the estimate:
It was further expressly provided that: “No extra compensation beyond the amount payable for the several classes of work before enumerated, which shall be actually performed, at the prices therefor to be specified by the lowest bidder, shall be due or payable for the entire work.”
It was further specified . that no deviation from the specifications would be allowed unless written permission should have been previously obtained from the commissioners and that “ work or material not specified and for which a price is not named in the contract will not be allowed for.” The bidders were required to state a price per running foot for completed pavement. The bid of the plaintiff
We are inclined to the opinion that, assuming it was within the power of the commissioners to modify the contract and order extra work, the plaintiff has not shown himself entitled to recover for the work in suit; except for the unpaid, balance of the contract price for the Merrick-road. The contract was drawn to preclude claims, for extra work of the character of that here presented.. The plaintiff expressly admitted that the' amounts and quantities of materials stated in the advertisement for estimates were approximate only, and stipulated that he would not ask, demand or sue for extra compensation for the several classes of work enumerated in the contract, and as to the work of a class not enumerated in the contract, and for which no price was named, should not be allowed anything therefor.
. It is apparent from the testimony that the commissioners did not assume to modify the contract. The plaintiff was referred by them to' the engineer and directed to comply with his instructions in the per- formance of- the work. In the main the work done by the plaintiff
As to the item of the Roa Hook gravel, the evidence seems to-support the plaintiff’s claim that this was in excess of the contract, material. It was testified that the foreman, having suggested to the. engineer that this gravel was the best covering, the engineer agreed to order it if the commissioners would authorize it. For 500 yards actually used the plaintiff received additional pay. The claim in suit is for the value of 300 yards delivered at the work but not used. This quantity the plaintiff claims was rendered worthless, because the engineer stopped him from further using that material.- As to this item the claim is not, in truth, for extra work, but for a breach of the contract, to take the material. Such a claim was not alleged in the complaint, nor do we find the evidence sufficient to show that there was an agreement to receive any definite amount. The plaintiff would, therefore, not be entitled to recover the value of this, material.
But however this may be, we are clear that the commissioners-had no power to impose on the county any liability for work outside of and beyond the provisions of the contract. The commissioners were public officers. Their sole authority to bind the county proceeded from the resolutions enacted by the board of supervisors. All persons dealing with them were bound to ascertain the limits of their powers and authority, and are chargeable with knowledge of such limits. (Lyddy v. Long Island City, 104 N. Y. 218 ; Donovan v. The Mayor, 33 id. 291.)
The resolutions did not constitute the commissioners sole judges of the improvements to be prosecuted, or authorize them to make-such contracts for the improvements as they deemed proper. The= grant of authority to the commissioners was expressly subject to-
As to the first item of the plaintiff’s claim, the unpaid balance of the contract price, we-think this was properly allowed to plaintiff. There is no evidence in the case sufficient to show that he forfeited this amount by his failure to perform the work in time. Gn this question the burden of proof was upon the defendant, and it was bound to establish affirmatively that it was entitled to retain the money.
The judgment appealed from should be reversed and a new trial granted before a new referee,, costs-to abide the event, unless the-plaintiff. stipulates to reduce the amount found due to him to the sum of $1,730, with interest from January 1, 1894, in which case
All concurred.
Judgment reversed and new trial granted before a new referee, costs to abide the event, unless, plaintiff stipulates within twenty days to reduce the amount found due to him to the sum of $1,730, with interest from January 1, 1894, in which case the judgment so reduced is affirmed, without costs of appeal.