141 N.Y.S. 1046 | N.Y. App. Div. | 1913
Lead Opinion
Defendants made application pursuant to section 547 of the Code of Civil Procedure for judgment upon the pleadings. While an answer has been served its allegations cannot be considered in determining the question at issue. The order for judgment has been made upon the ground that the complaint fails to state facts sufficient to constitute a cause of action, and that ground presents the only question here for consideration.
The complaint assumes to assert three causes of action. The defendants were furnishing coal to the Clinton State Prison at Dannemora, Clinton county. From October, 1903, until Hay, 1910, they furnished 32,943 tons of coal. This coal they fraudulently represented to the warden of the State prison as
In the second cause of action it appears that the defendants were furnishing coal to the Sing Sing Prison in the State of New York; that between April, 1901, and June, 1908, proposals were advertised for by the Department of Prisons for the furnishing of egg anthracite coal for use at said prison; that pursuant to said advertisements the defendants bid four dollars and seventy-five cents per gross ton, and said bid was accepted by the Prison Department as being the lowest bid. It is further alleged that with intent to defraud the People of the State the defendants wrongfully induced the agents and wardens of said Sing Sing Prison to enter into written contracts with the defendants for the delivery of grate coal, which was a coal of inferior and cheaper grade, and of a value of thirty-five cents per ton less than egg coal, and that pursuant to said contract the defendants did deliver to the said Sing Sing Prison grate coal to the amount of 11,085 tons. It is further alleged that the defendants from time to time wrongfully and unlawfully presented claims to the agents of said prison for coal so furnished, and wrongfully and unlawfully received pay therefor at the rate of four dollars and seventy-five cents per ton, which was thirty-five cents per ton in excess of the value of the coal so furnished, and for this thirty-five cents per ton the plaintiff demands judgment. It is not directly alleged that this grate coal was furnished in substitution for the egg coal for which the bids were made. It is so treated, however, by counsel and by the Special Term, and perhaps this is fairly inferable from the facts stated. Nor is it explicitly alleged
The questions arising as to the third cause of action present more difficulty. That is a cause of action to recover an over payment for coal furnished at the Sing Sing Prison under a contract to deliver 5,000 tons of egg anthracite coal at $4.95 per gross ton. It is alleged that between the 1st day of May, 1909, and the 1st day of May, 1910, the defendants delivered to said Sing Sing Prison 6,050 tons of grate coal, the same being a coal of an inferior quality, and of a value at that time of fifty-five cents less per ton than egg coal, and from time to time during said period presented to said agent and warden claims for egg coal. It is further alleged that the claims so presented were knowingly false, fraudulent and unlawful, in that.the coal furnished was not egg coal, but was grate coal, and of an inferior quality, and of a value at that time of fifty-five cents per ton less than egg coal. Further, that said defendants well knew that said claims were false, fraudulent and unlawful, and said defendants wrongfully caused and induced said agents and wardens to pay false and fraudulent claims, and thereby obtained and received, and have ever since kept and retained without authority, money belonging to the State to the. amount of $3,32Y.50. In this cause of action, as in the second cause of action, there is no allegation that the grate coal was delivered in substitution for the egg anthracite, for which the contract was made; but, as in the second cause of action, it has been assumed by the court and by counsel that such was the
I recommend, therefore, that the order and judgment be
All concurred, except Kellogg, J., dissenting in memorandum, in which Woodward, J., concurred.
Dissenting Opinion
Every public official is presumed to have acted lawfully and to have performed his duties in good faith. The complaint must be read in connection with this presumption. It contains no allegation of bad faith or fraud on the part of the agent and warden or clerk, and does not allege that they relied upon or were deceived by any statement or representation of the defendants. It was prepared by skilled lawyers, who evidently stated the facts in the most favorable manner. The fact that the appellant has appealed from the order instead of amending the complaint, indicates that the facts do not permit an amendment or that it is deemed more important to settle a question of practice than to try the case on its merits.
Under section 132 of the Prison Law (Consol. Laws, chap. 43; Laws of 1909, chap. 47) the agent and warden may supply the prisons with necessary articles for maintenance “either by contract or by purchase ” as shall he directed by the Superintendent of State Prisons. Under the first alleged cause of action there evidently was no contract for the furnishing of coal from time to time, but the transactions were “by purchase.”
Section 136 of the Prison Law contemplates that the agent and warden, at the time he receives articles purchased, shall receive also a bill of the purchase, and that the clerk shall enter the bill in the books at the time of the receipt of the articles, “and in case the articles received do not agree in all respects with the invoice, he shall immediately notify the agent and warden of such discrepancy, and note in his book the discrepancy, whether in weight, quantity or quality.” And by section 127 the agent and warden is required to make a monthly statement of his receipts and expenditures, specifying the items thereof, to which must he attached the affidavit of the clerk certifying “ that the articles contained in such bill
It is thus apparent that all articles purchased must be examined by the agent and warden and the clerk, and each is required to see that there is no discrepancy in the quality or quantity and that they comply with the bill accompanying the delivery. Evidently the kind of coal and the price were agreed upon. The officers were derelict in their duty if they left to a vendor to determine what quality of goods he should deliver and what price he should charge therefor. It is not alleged that the State did not get the kind of coal it purchased, or that it paid more for the coal than it was actually worth, or more than the agreed price. It is simply alleged that the coal delivered was “of an inferior quality and grade, and of a value of one dollar per ton less than pea coal.” That is the only allegation as to the kind of coal or the value of any kind of coal. The only other fact alleged is that the defendants presented verified claims for the ■ coal, describing it as pea coal, and that said claims in that respect were knowingly false and fraudulent and that they received pay on said claims.
It was the duty of the agent and warden to inspect the coal when delivered and to ascertain that it was the kind bought. We must assume that duty was performed. If upon examination the coal delivered was found to be the coal purchased it is quite immaterial, so far as the plaintiff’s claim for damages is concerned, how the coal was described in the claims presented. The actual purchase, delivery and acceptance of the coal are what fixed the rights of the State.
For its second cause of action it is alleged that pursuant to advertisements for furnishing egg anthracite coal the defendants’ bid of four dollars and seventy-five cents per gross ton was accepted by the Prison Department as the lowest bid. That a contract was actually made between the agent and warden and the defendants for the furnishing of grate coal at that price, grate coal being worth thirty-five cents per ton less than egg coal, and that the coal was delivered and paid for pursuant to the contract. It alleges that the defendants wrongfully, fraudulently and unlawfully, and contrary to the terms of the
Under section 132 of the Prison Law, after a bid is accepted, a contract is to be made, if the bidder gives satisfactory security, unless the Superintendent shall deem it best to decline all proposals and advertise again. Therefore, the advertisement and the making and the acceptance of the bid were not in themselves the contract. The complaint does not allege any fact showing any fraud or wrong upon the part of the defendants, or which indicates any wrong or bad faith upon the part of the prison officials. If the defendants fraudulently overreached their judgment the facts by which the result was accomplished should be alleged. The complaint alleges a conclusion, without a statement of facts sustaining it. If coal had advanced in price, or egg coal was not available, or the defendants had refused to enter into a contract according to their bid and the State was forced to contract for the other kind of coal, perhaps the pleader would have felt justified in claiming that the defendants had acted fraudulently, wrongfully and unlawfully and thereby procured the making of the contract. The only effect of the allegation as to the accepted bid is to indicate that the contract actually entered into was unlawful because not made pursuant to a regular bid. If we assume the contract as made was unlawful for that reason, it does not follow that the plaintiff has a cause of action upon the facts alleged. Each delivery pf grate coal pursuant to the alleged contract would either be deemed a separate purchase at the contract price or on a quantum meruit. The mere fact that the defendants had prior to that time offered to furnish a more valuable coal at four dollars and seventy-five cents a ton, does not indicate that at the time the coal in question was furnished it was not of that value. There is no allegation as to what the coal was worth, or that it was worth less than the price paid.
The third alleged cause of action proceeds upon the theory that the defendants by contract were to furnish five thousand tons of egg anthracite coal at four dollars and ninety-five cents per ton, hut that they delivered six thousand and fifty tons of grate coal, which was in fact worth fifty-five cents per ton less
This was evidently an executory contract to deliver coal in the future. We may fairly assume that the difference between grate coal and egg coal is apparent on inspection. The deliveries were made prior to May in 1910; the action was brought in January, 1912. It does not appear that any previous complaint had been made about the coal. It was accepted and used as complying with the terms of the contract. The description of the coal in the contract as grate coal is not a warranty which can be relied upon after the coal is accepted, but it is a description of the property and, if not complied with, the purchaser is not required to accept, but if the property offered is accepted as a compliance with the contract, such acceptance irrevocably establishes that the contract has been fulfilled by the vendor. (Coplay Iron Co. v. Pope, 108 N. Y. 232; Carleton v. Lombard, Ayres & Co., 149 id. 137.) Undoubtedly if the defendants and the prison officials unlawfully conspired to defraud the State by the delivery of the inferior coal under the contract, such fraudulent acceptance would not be binding upon the State. The action, however, would not be upon the contract, but would be for damages arising from the fraudulent conspiracy, upon proper allegations to that effect.
The State as a contractor, or suitor with reference to its contract, is bound by the same rules of law as apply to private corporations and persons. If its officers, charged with the duty of purchasing and accepting goods for use, act in good faith and give the State the benefit of their best judgment in determining whether the goods furnished under an executory contract are a compliance with its terms, their determination is binding upon the State and it has no further remedy upon the contract. In order to obtain relief where property has been accepted under an executory contract without warranty, it must show not only the wrongful act of the contractor but of its officials or servants who accepted the property, thereby vitiating the effect of the acceptance. A mere allegation that
I favor an affirmance, with leave to amend so that the plaintiff, if it has a cause of action, may allege it, and that the trial may proceed upon a proper complaint.
Woodward, J., concurred.
Order and judgment reversed and motion for judgment denied, with ten dollars costs and disbursements.
