11 A.D. 472 | N.Y. App. Div. | 1896
In November, 1888, Sullivan & Co., a firm of which the defendant Sullivan is the survivor, entered into a contract with the plaintiff for the construction of a sewer in the city of Amsterdam. The work was commenced by Sullivan & Co. and continued by them until April 5, 1889, when the plaintiff took possession and completed the work at a loss to the city, as the jfiaintiff claims, of about $1,300 over and above the contract price. This loss the plaintiff in this action seeks to recover of Sullivan and the sureties on a bond given by the contractors for the faithful performance of the contract.
The plaintiff claimed the right to enter and complete the contract under one of its provisions, being section 23, by which it was provided that it might do so “ in case the party of the second part (Sullivan & Co.) shall fail in due performance in any part of his undertaking or shall become bankrupt or insolvent.” In the complaint it is alleged that the contractors failed to perforin the contract.
It was found by the referee that the contractors were not in default, had not in any respect violated their contract, and that the
The plaintiff claims that the referee erred (1) in holding that the plaintiff had no right to take possession; (2) in allowing sixty dollars for extra work; (3) in charging the plaintiff with the value of the tools, implements and machines ; (4) in admitting certain evidence as to the solvency of the contractors.
1. The plaintiff took possession on the morning of April fifth. Up to this time there had been no failure on the part of the contractors to perform their contract. The work was going on as directed by the plaintiff’s engineer. The men of the contractors were at work on the fourth of April, and they were on hand ready to start at seven o’clock on the morning of the fifth when the engineer of the plaintiff, by its direction, assumed control and excluded the contractors from any further control or possession. There is evidence tending to show that the contractors had not become bankrupt or insolvent. The plaintiff, however, seeks to justify its action by reason of what occurred the evening before between Sullivan and the commissioners.
The plaintiff invokes the doctrine of equitable estoppel. (Shapley v. Abbott, 42 N. Y. 447.) The claim is that when Sullivan said he would quit if the board would not allow his claim for extra work, the board, if it concluded not to allow the claim, could, without giving Sullivan any notice of its action on his claim, go on and take possession although Sullivan at the time was in fact going on with the work and had not abandoned it. There was some evidence that the board knew of his intention to go on until he could hear from his partner and bondsmen. The engineer, as he took possession and before he did anything or the board did anything to change its position, knew that there-was in fact no abandonment. The knowledge of the engineer, as to the situation in fact, when he took possession, should be attributed to the board. It justified its engineer’s action after ic knew the situation. A threat to abandon, not being followed by an actual abandonment, would hardly justify an expulsion or forfeiture. The board had a right to have its work performed according to the contract. As long as that was being done the board had no right to complain. No such injury or change of situation was shown to have occurred by reason of what Sullivan said, as would equitably justify the board in excluding him from the work. They knew there was no abandonment before they acted to their in jury.
But it is suggested that Sullivan said he had no means to pay his men, and that, therefore, the board had a right to consider the contractors insolvent and thereupon take possession. There is no allegation of this kind in the complaint, and, therefore, it should be assumed that this was not the ground on which possession was taken. There was proof that the contractors were solvent.
The finding in effect by the referee, that there was no' equitable estoppel in the case, should not, I think, be disturbed.
2. The $60 was allowed for balance of extra work performed in February. The contractors presented to the engineer a bill ■ for extra work that month to the amount of $202. Of this the engineer allowed the sum of $142 and included it in the estimate for that month. Sullivan testifies that the engineer told him that
The item of sixty dollars was, I think, improperly allowed.
3. The plaintiff claims that the finding of the referee as to the tools, implements and machines is contrary to the evidence. We think not. The evidence was sufficient to justify the finding and should not be disturbed.
4. The rulings as to the evidence in regard to the solvency of the contractors do not present any good ground for reversal of the judgment.
It follows that, except as to the sixty dollars above referred to, the judgment should be affirmed.
All concurred.
Judgment modified by deducting therefrom the sum of sixty dollars and interest thereon from January 1, 1890, and as modified affirmed, with costs.