114 N.Y.S. 969 | N.Y. App. Div. | 1909
The defendant was the general contractor for the erection of a house in the city of New York for Andrew Carnegie, for which he was to receive a stated fixed price. He made a sub-contract with plaintiff to quarry, cut and furnish granite. The architects and agents for Carnegie were»a certain firm of architects. They were to furnish the plans for the work to be done under both the general contract between the defendant and Carnegie, and the sub-contract between plaintiff and defendant and, all work under either contract was to be subject to their inspection, approval and .acceptance. The plaintiff has recovered judgment for a sum admitted to be due him. He appeals, however, because the trial court refused to submit to the jury or permit a recovery for a claim for damages resulting from the delay of the architects in furnishing detailed plans necessary to be had before the required granite could be quarried. His claim in this regard is that although he constantly requested that plans be furnished him., they were unreasonably delayed, and that in consequence he was put to much additional expense in keeping his quarry open, in loss of interest, in increase in the rate of wages and the like. For the purposes of this appeal we must assume that the plans were unreasonably delayed, and that the plaintiff suffered some damage thereby. The question is whether the defendant is liable for such damages. To determine this question it is necessary to consider the contract between the parties read in the-light of the surrounding circumstances. The most important of such circumstances is the fact which is made apparent by the contract, and by the complaint and evidence in the case, and is not disputed, that when the parties entered into this contract plaintiff knew that Carnegie, and not defendant, was the owner of the house and that defendant was merely the general contractor with the owner. This is important because its bears upon the agency of the architects, to whose default plaintiff attributes his loss. The contract is stated to be upon a printed form in common use by defendant in his business. By its 1st clause the party of the first part (plaintiff) agrees that he will, “ under the direction and to-the
The, delay complained,of was in furnishing such detailed drawings on the proper scale. The appellant has called' our attention to ■ a number of cases-in which there has been applied to building contracts. the familiar rule that there is in every contract an implied ■ obligation on each contracting party to do all that he reasonably can do to enable the other party to perform his contract, and that for á, failure sO to do, either directly or by the default of his servants or agents, the party so failing may be held to respond in damages. If the architects whose default is said to have caused tli.e damages were defendant’s agents, or if the defendant assumed responsibility for their acts, he might be held liable under, the rule stated.; As we read the contract, however, the architects were not created defendant’s agents and he did. not assume responsibility-for them. They- are expressly described as “ acting for the purposes of this contract as agents of the owner,” and as has been said, plaintiff knew perfectly well that the owner was Carnegie, and -that defendant was merely a contractor with ■ the owner. Plaintiff, •therefore, distinctly and specifically agreed to perform his work - under the direction and to the satisfaction of Carnegie’s agents. The designation of the architects as “agents of the owner” was expressly declared to be “ for the purposes -of this contract,” which
The judgment must be affirmed, with costs to the respondent.
Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.
Judgment affirmed, with costs.