Van Buskirk & Conkey v. Stow

42 Barb. 9 | N.Y. Sup. Ct. | 1863

Miller, J.

It is conceded that the defendant failed to perform the agreement first entered into between him and the plaintiffs within the time therein named and required, and the case presents the simple question whether any sufficient excuse is offered, to exonerate him from liability for its nonperformance.

It is contended by the plaintiffs' counsel that the time for fjj^e fulfillment of the agreement was not extended, nor its performance within that time in any manner waived by the plaintiffs.

I think that it is established by the evidence that the original contract was essentially changed by the acts of the parties, and that much of the work was done under other and different arrangements entered into after the work was commenced.

1. The plaintiffs, under whose direction the work was actually done, soon after it had been begun, found that extra work would be required, and directed its performance. It was done accordingly, by the contractors employed to do the work by the original agreement.

2. About the middle of September, 1859, the plaintiffs requested the defendant to put trimmers under the building so as to strengthen the floors, and immediately afterwards the defendant entered into a new contract with the contractors of the original job to do this work.

It is said that the defendant, by his contract with the plaintiffs, was bound to put in the trimmers. The contract provided that the defendant was to fit up and alter the building for the purpose of being occupied as a malt-house, according to the plans and specifications furnished by the contractors. By the specifications there were to be posts in the cellar and in the principal story, and also what were needed in the other stories. It was conceded by the parties to the contract that trimmers were not included in the specifications, which concession appears to have been assented to by the plaintiffs. They were certainly not named specifically, and all the parties having acted upon the assumption that they were not provided for, including the plaintiffs, (who were guarantors for the contractors,) it is fairly to be inferred that they were not technically embraced in the agreement. I incline to think that the plaintiffs were bound by this assumption. Even if the general provisions in the specifications and the covenant in the lease to make all repairs covered the trimmers, as is claimed, yet as the plaintiffs assented to a different construction, which may have induced the action of the defendant, it does not lie with them now to insist upon another rule. It should be observed that the referee found as causes of the delay in completing the building and in making it suitable for the purposes designed, the contract for the trimmers, some difficulty in procuring timber, and the performance of other extra work by the contractors. I think his finding is sustained by the evidence. There is certainly no such preponderance of testimony against it as would authorize an interference on that account.

3. It also appears that in the latter part of the month of October the defendant seeing grain taken in the upper story of the building winch was reserved under the original contract, forbade the plaintiffs putting any more grain there. The plaintiffs told the defendant that they would not take the building unless they could have the upper loft, and the defendant for fear they would not take it, entered into a new arrangement with them, by which they were to have it, provided they would- brace it up properly. This arrangement was carried out and embraced in the lease subsequently executed, thereby making another important and material change in the original contract.

It will be seen that there were several variations from the first contract, which to a considerable extent changed its character.

It being established that the first contract was changed in many respects so as to require a longer period of time for its performance, and the evidence showing, as the referee has found, that the work required by the original plan and specifications would probably have been performed in time but for the extra work; it must be considered, I think, that the time was extended to complete the alterations agreed upon.

• I am also of the opinion that the time for the performance of the work having been thus extended, virtually for the benefit of the plaintiffs, and at their request, and they having taken, subsequently, a lease from the defendant of the upper loft, which was not included in the original contract, the plaintiffs thereby waived their claim for damages for the non-performance of the contract within the time provided for.

The parties have a perfect right thus to alter, or to waive any terms of the original agreement. They have also a right to extend the time of its, performance. (Clark v. Dales, 20 Barb. 64, and authorities there cited.)

Various objections are made to the position that there was a waiver; some of which it would be well briefly to notice.

1st. It is urged that the execution of the lease did not operate as a waiver, the covenant to repair and the covenant to take the lease being each independent of the other.

Admitting that it did not of itself work a waiver yet in connection with the extension of the time of payment it did have that effect. The lease embraced more than was included in the original contract. It substituted a new arrangement in the place of the old one. It was a surrender of the old agreement for another and a new one, and the plaintiffs having assented to it cannot now claim the benefit of the one thus given up. They are estopped by their own act from claiming under the first contract. They took a position with full knowledge of all the facts, and must be regarded as accepting the new contract with the original time fixed extended. Nor is there any force in the point that the covenants are independent.

2. It is said that no issue of waiver was raised hy the pleadings in the case, and no such claim made upon the trial, and hence the referee’s conclusion that the plaintiffs had waived all claim for damages was erroneous. Although not distinctly set up in the answer, the facts were all before the referee, and I think within the issue. The evidence on the subject bore directly upon the question of performance, and even if the pleadings did not embrace this precise defense, yet as the testimony was in the case, the referee was authorized to decide the question of waiver. If need be, the pleadings might have been made to conform to the facts proved.

3. It is further objected that it was not understood or intended by either of the parties, at the time the agreement was made in relation to the upper story of the building, that such agreement was to be a waiver or settlement of the plaintiffs’ claim for damages. The declarations of the parties are referred to for the purpose of sustaining this view of the subject. It is true that the plaintiffs informed the defendant that they would not waive their claim for damages. If they had already done so by extending the time for the performance of the contract, a mere declaration of that kind would not affect the question of waiver. Nor woul d it be affected by any understanding, in contravention of the legal effect of the written lease and the inference to be drawn from the fact of its being executed. I do not therefore consider that it can be claimed, fairly, that the understanding or intention of the parties was different from what may be legitimately inferred from the written instrument and the circumstances surrounding the case.

After a careful examination of the questions raised by the plaintiffs’ counsel I see no error in the decree of the referee, and am of the opinion that a new trial should be denied, and the judgment entered upon his report should be affirmed with costs.

[Albany General Term, March 2, 1863. Gould, J.

There is evidence to support the finding, by the referee, that the delay in completing the work was, at least in part, occasioned by the extra work which the plaintiffs called for, and in part paid for, and by the new work, under the second agreement to put in “trimmers.” This being so, the plaintiffs could not insist on time as absolutely essential to the contract; and there is, by the evidence, no criterion furnished for telling how much of the delay (and consequent damage) was thus caused by the plaintiffs, or for how much the defendant was responsible. In the absence of any such criterion, there was no rule of damages to be drawn from the evidence, and the plaintiffs were rightly nonsuited.

Peckham, J. concurred.

Judgment affirmed.

Gould, Peeklmn and Miller, Justices.] '