The defendant John Peirce Company, which for brevity I shall hereinafter refer to as the defendant, contracted to erect a building for the defendant West Street Improvement Company on the west side of West street, between Albany and Cedar streets, in the borough of Manhattan. It invited bids from different contractors for doing the excavating work and preparing foundations, and, pursuant to that invitation, the plaintiff, on September 15, 1905, submitted a proposition in writing to excavate over the entire area of the lot down to the level of thirteen feet eleven inches below the curb, to furnish and drive piles of the number shown on plans exhibited, to excavate for and build concrete piers up to the grillage beams, to shore and underpin adjoining buildings if necessary, to excavate for the boiler pit, and to sheathpile the streets, build sidewalk bridges, and do all necessary pumping for the lump sum of $77,500, and to drive extra piles, make extra excavation and furnish materials for, mix and place concrete for cellar floor at stated unit prices. The defendant replied in writing, accepting the proposal upon condition that a satisfactory agreement should be signed that the work should be completed before January 1, 1906, and that for each day’s delay beyond that time the plaintiff should pay the sum of $100. It was also proposed that the plaintiff should do certain additional work. Those conditions do not appear to
The plaintiff pleaded in its complaint the contract evidenced by the letter of September 15, 1905, and sought to recover the stipulated lump sum specified in the contract, the stipulated unit prices for extra work and stipulated prices for extra work performed under subsequent modifications of the contract. On the hearing before the referee, the plaintiff was permitted, over the defendant’s objection and exception, to introduce evidence in support of its claim that its proposal of September 15, 1905, was submitted under a mutual mistake of fact as to the presence of rock-filled cribbing, and at the close of its evidence was permitted to amend the complaint to conform to the proof. The plaintiff’s evidence established the performance of work amounting, according to the stipulated unit prices and lump contract price, to $103,850.01. It had received $83,485.98, leaving unpaid the sum of $20,364.03, which with interest to the time of the judgment amounted to $25,931.11. The defendant does not question the plaintiff’s right to recover that sum. The plaintiff also established without serious dis
We shall assume that, upon the plaintiff’s theory of the case, it could recover in this mechanic’s lien suit the sum in dispute as for extra work, and that the admission of evidence to sustain that theory and the subsequent amendment of the pleadings to conform to it were proper, and shall come directly to the merits of the controversy. Negotiations leading up to the commencement of the work were conducted on behalf of the plaintiff by one Charles H. Deans, an engineer. The proposal of September 15, 1905, was signed, “John Monks & Sons, per Chas. H. Deans.” Prior thereto, the defendant’s engineer had invited Deans to submit a proposal, had furnished him a sketch of test borings made for the defendant, a blue print showing location of test holes and a section showing the position and character of the materials, and had informed him that the defendant had men on the lot digging pits in various places, and had invited him to inspect the premises. The sketch of test borings and the blue print section showed what any one familiar with the location would doubtless have known, even without that information, that the material to be excavated was filled-in or made land upon river mud and sand. Cribbing was indicated, though the extent of it was not shown, and upon the blue print plan there was a sketch showing a vertical section of what was styled “ typical old timber foundation,” indicating timber crib work, and in the spaces between the timbers, as shown on the sketch, was the word “earth.” It is not entirely plain, at least to one who is not an engineer, whether the spaces marked “ earth ” were intended to represent the interstices between the timbers or the pockets of the crib itself. The plaintiff’s theory is that the typical timber foundation shown on the plan indicated earth-filled cribbing; that both parties contracted upon the assumption that that was typical of all the crib work; that its contract required it only to drive piles in earth-filled cribbing, and that it is, therefore, entitled to recover as for extra work the additional expense caused by the stone-filled cribbing. The defendant called
A mere glance at the blue print plans suggests that the purpose of the cribbing was to resist lateral pressure, to support the made or filled-in land, and it seems to us that, independently of the plans, that would occur to any one as familiar with the location as the plaintiff was. There is no suggestion of bad faith on the part of the defendant. Indeed, the plaintiff’s theory is that of mutual mistake. The defendant gave the plaintiff such information as it had, i. e., the blue prints prepared for it by engineers, showing test borings and the character of materials discovered, but these blue prints did not purport to be a complete representation of all the materials to be excavated or encountered in the driving of piles. The information that men were digging pits, coupled with the invitation to inspect the premises, was notice to the plaintiff that it could not rely upon the blue prints as completely showing the situation. The plans formed no part of the plaintiff’s proposal except in so far as they showed the number of piles to be driven. The proposal was not limited to driving piles in, or making excavations of, specified material, and we think that, in view of the fact that the blue print plans did not purport to be a complete representation of the work to be done, in view of the invitation of the defendant to inspect the premises, and in view of the plaintiff’s familiarity with the location and presumed knowledge of the probability that stone-filled cribs would be encountered, it was incumbent upon the plaintiff to investigate and ascertain for
Moreover, the defendant’s engineer testified without dispute that he prepared a paper styled “memoranda for bidders” and that he delivered a copy of it to Deans. That memorandum stated that all information available was given on accompanying blue prints, specified how far the excavation was to be carried, how concrete was to be made, and called for proposals for specific items of work. It also contained this statement: ‘Note that the ‘typical’ crib foundation shown on this plan was found only at boring % 3. At the other points marked ‘crib; the wash pipe was stopped by timber but the nature and extent of same was not determined.” Deans had died before the trial. The plaintiff’s manager testified that he had never seen that memorandum. It is claimed that the positive testimony on direct examination of the defendant’s engineer is weakened by the following statement on cross-examination: “It is my recollection that I gave also to each one of these bidders this memoranda for bidders known as Exhibit E. Undoubtedly I did. They had to have that to start on the figures. At this time, our specifications were not prepared.” It is also urged that, even if Deans did have the memorandum, his knowledge was not the knowledge of the plaintiff. But that contention overlooks the fact that all of the negotiations on behalf of the plaintiff were conducted by Deans, and that the proposal was made in the plaintiff’s name by Deans. Of course if that memorandum was delivered to him, the plaintiff was called upon to ascertain for itself, before submitting a proposal, the character of the work to be done. The referee found that said memorandum was not delivered to Deans. We think that finding against the evidence. It is opposed both to uncontradicted testimony and to the probabilities of the case. But even if it was not delivered to Deans, it is of itself sufficient to refute the plaintiff’s claim of mutual mistake. It was concededly in existence. Each of the other bidders testified that he received a copy of it. It establishes beyond peradventure that there was no mistake on the defendant’s part. It did not con
I have considered the case upon the assumption that the plaintiff’s proposal of September 15, 1905, was accepted and became a binding contract. In fact, however, the acceptance was not unconditional, something remained to be agreed upon, and it may be that the plaintiff could have recovered for all the work done on a quantum meruit. Under the circumstances disclosed in this case, a recovery on that basis would doubtless have been just between the parties. The contract price was evidently favorable to the plaintiff. At least, it has indicated an eagerness to hold fast to it. It has pleaded the contract and has recovered the stipulated contract price, both the lump sum and the unit prices for the extra work. It has thereby concluded itself from asserting that there was not a meeting of the minds upon all of the provisions of the contract, and it would be manifestly unjust to the defendant to give the plaintiff the stipulated prices and an additional sum for work covered by the contract, but which for unforeseen circumstances cost more than the plaintiff expected.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the final award of costs, unless the plaintiff stipulate to reduce the recovery to the sum of $25,937.11, in which event, the judgment, as modified, should be affirmed, with costs to the appellant.
Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce recovery as stated in opinion, in which event, judgment, as modified, affirmed, with costs to appellant. Order to be settled on notice.