18 Barb. 107 | N.Y. Sup. Ct. | 1854
The action was founded upon the contract of September 15, 1841, between the plaintiff and defendant, and that contract depended upon the contract of September 27,1838, between Parmele and others and the state, and which had been assigned to the defendant. In other words, the relation of the contract between these parties to the contract with the state for the construction of the locks was such, that when the state suspended the work and put an end to its contract, the contract between the plaintiff and defendant came to an end. (Jones v. Judd, 4 Coms. R. 412, and cases cited.)
There is no foundation for the position that the contract between these parties was made without any reference to the prior contract with the state. If the contract had contained no reference to any other contract, or to any action or interest of the state in the subject matter of the contract, I should not hesitate to hold that the parties to it were affected by the action of the state in putting a stop to the work. The Erie canal is a public work, constructed under public laws presumed to be known to all. The construction of the ten combined locks at Lockport vras authorized by public laws, and they were to be constructed on account of and for the state; and we may presume that the plaintiff so knew, and that he knew that the defendant was not the owner of the locks, and that he was not building them upon his own private account, or upon the private account of any individual. But the contract between the parties sufficiently indicated that the locks were being constructed by the defendant for the state. Aside from references to engineers, it was provided that the defendant should pay the plaintiff for the castings, &.e. whenever he should receive his pay on estimates from the state for the same. This shows that the defendant was to receive payment from the state for the very articles to be furnished by the plaintiff.
The plaintiff was paid for all the castings, &c. furnished by him prior to the suspension of the work by the state in 1842, and Jones v. Judd, above cited, is directly in point to show that the contract between these parties was brought to an end; and it seems to me that this view of the case puts an end to the
The court was clearly right in refusing to charge as requested. If the plaintiff had counted, for his cause of action, upon a new contract, made with the defendant at the time the defendant was constructing the south tier of locks under the second contract made with the state in 1847, he might perhaps have had the right to have the question of such new contract submitted to the jury. He gave some evidence tending to show a recognition of. the old contract by the defendant. The defendant by his agent ordered castings, &e. from the plaintiff, and paid him therefor the prices specified in the old contract. But it must be kept in mind that the old contract was at an end, and that it could only be revived, so as to be binding upon the defendant, by a new valid agreement, and, if there was any new agreement, the action should have been founded upon that.
There is nothing in the fact that the defendant became the contractor with the state under the first and second contracts. There was no connection between the two contracts. The defendant was the assignee of each; but had he taken the last contract from the state, himself, it would not have revived any contract between him and others which had been previously brought to an end by the action of the state. I think the case was properly disposed of at the circuit, and a new trial should be denied.
Marvin, Bowen and Green, Justices.]
