114 N.Y. 145 | NY | 1889
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *147
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *148 On the 14th of September, 1885, the city engineer reported to the common council that the time to complete the contract had expired long before, and "also that the contractor has neglected to provide a sufficiency of workmen and material and failed to supply the same with such due diligence that the comparatively small amount of work remaining to be done thirty days ago has not been promptly prosecuted to completion, nor will it be finished this fall at the present rate of progress." Two weeks later, after due notice to the contractor of its intention to forfeit the contract if he did not prosecute *150 the work with diligence and promptness, the common council decided that the work required by the contract had not been completed, and that it was not being prosecuted with promptness and diligence, and declared the contract forfeited. The parties agreed that the common council should have this power if it was "satisfied" that the report of the engineer was correct. The common council could not be arbitrary or capricious in the exercise of the power, but was bound to act judicially and declare that it was satisfied only when in reason and good conscience it might be satisfied. While it was not bound to be right, it was bound to act in good faith. This, in the absence of evidence to the contrary, it is presumed to have done. The facts furnished sufficient ground for its action. Just two years had elapsed since the contractor began his undertaking under the agreement to complete it in one hundred days. According to the undisputed evidence all of the delays for which the city was responsible, or that were owing to the season of the year or the weather, did not exceed one year. The report itself gave the common council jurisdiction and was sufficient evidence for it to act upon. It stated as facts the expiration of the contract time and the negligence of the contractor to provide a sufficiency of workmen and materials. Even after notice the contractor had two weeks, but, according to the recitals in the resolution of forfeiture, he did not, during that period, proceed with promptness and diligence to prosecute the work. The trial court assumed that the forfeiture was authorized, but held, in effect, that all defects not mentioned in the report of the engineer were waived by the city.
Assuming that the common council had jurisdiction to declare the contract forfeited, the question arises, what effect that action had upon the rights of the parties. It is claimed by the respondents that the city had the power only to finish the work not then done, or attempted to be done, either imperfectly or otherwise, while the appellant contends that it had the right to finish all work then incomplete, including that which the contractor had attempted to do, but had done poorly. *151
The forfeiture contemplated by the contract applies only to the contractor by depriving him of the right to finish the work. It leaves the contract in force as to the city, but calls into operation new provisions especially adapted to the emergency. Those provisions do not simply authorize the common council to remedy the defects pointed out in the report, or to complete the work in those respects which the report mentioned as incomplete. They authorize the common council "to perform and furnish the work and material required by the plans and specifications, so as to fully execute and complete said work." Thus the power to complete the contract is unlimited. It is not confined to the ground upon which the contract may have been declared forfeited. The words "fully execute and complete" do not apply exclusively to that portion of the work which the contractor did not try to do at all, but they apply to all work not completed according to the plans and specifications. Instead of referring simply to that part of the street which had not been paved at all, they refer to the entire street and authorize everything to be done that was necessary to fully execute and complete the entire work as required by the contract. As the city had neither accepted any part of the work, nor waived any of the provisions of the contract, it was empowered to render perfect anything that the contractor had left imperfect, and to deduct the expense from the contract-price yet unpaid. It was not the intention of the parties, according to their written agreement, that upon declaring a forfeiture, the city should simply resume work where the contractor left off and finish it from that point only, with no right to remedy defects or to repair bad work in those parts of the street already gone over. Such a construction would deprive the words used by the parties of their natural meaning. If the contractor used poor materials and did poor work and finally refused to go on with the contract, the common council was not bound to declare the forfeiture upon all possible grounds. It was sufficient if it named a single tenable ground. That deprived the contractor of the right of further performance and conferred *152 it upon the common council. It thereupon became the duty of that body to cause to be done that which the contractor ought to have done, in order to fully execute and complete the work in the form required by the plans and specifications. Jurisdiction to forfeit the contract upon any ground conferred the power to complete the contract in every respect. The forfeiture does not operate simply to the extent named in the report, but absolutely, and the right to correct defects extends beyond those reported by the engineer, to the entire work. The contract does not require that notice should be given to the contractor to replace poor material or change poor work. It provides that all materials used and work done shall be subject to inspection by the common council and engineer, and that if, in the opinion of either, the material or work is bad, it shall be remedied by the contractor. It also provides that such inspection shall not be construed to relieve the contractor from any obligation to execute the work in strict accordance with the true intent and meaning of the plans and specifications. These provisions, however, ceased to be operative after the forfeiture. They applied only while the contractor was still engaged in performing the contract.
We think, therefore, that the trial court erred in rejecting certain evidence offered to show what portions of the work were defectively done, according to the plans and specifications, and what the work done by the city to remedy the defects was worth. The ruling was apparently based on the theory that the city, by its action, had waived all imperfect work and should be confined to that which had not even been commenced. From what has already been said, it is clear that this evidence should have been received, and that the reasonable value of the work necessarily done under the direction of the common council to fully complete the contract according to the plans and specifications, should have been deducted from the contract price.
It is insisted by certain of the respondents that as the amount of their respective liens is less than $500, no appeal can be *153 taken from the judgment as to them. The matter in controversy, however, is the amount due the contractor from the city, as that must be established before any lien upon it can be enforced. The lien operates upon the moneys in the control of the city, due or to grow due under the contract. By the judgment appealed from, it is first adjudged that the sum of $2,454.94 is due from the city to the contractor, under the contract, and then $1,803.01 thereof is distributed among seven persons holding liens, which range in amount from $40.37 to $1,190.40, while the remainder, $651.93, is awarded to the contractor.
We think that the judgment is appealable and that it should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.