Zadek v. Olds, Wortman & King

151 N.Y.S. 634 | N.Y. App. Div. | 1915

Hotchkiss, J.:

The complaint was dismissed for failure to state a cause of action. Plaintiff sues as assignee of one Taussig, upon a written contract between the latter and the defendant. The provisions affecting the sufficiency of the complaint are as follows: It recites that “for and in consideration of five (5) per cent commission on the actual cost of all fixtures for which plans, designs and specifications shall have been actually prepared ” by Taussig, he “ agrees to plan, design and inspect the construction of and superintend and inspect, the installation of fixtures to be placed upon the first, second, third and fourth floors of the building to be erected ” by defendant. Taussig further agrees to prepare and submit preliminary plans and upon acceptance thereof by defendant to make elevation drawings and thereafter to prepare full-sized construction details and specifications; to secure bids for the manufacture and installation of the fixtures, all of which bids are to be submitted to defendant before acceptance,' defendant reserving the right to reject any and all bids and call for additional bids. Taussig further agrees to superintend the fixtures during their fabrication, and also to superintend their installation. The parties mutually agree that Taussig’s necessary traveling expenses incident to carrying out the contract should be borne jointly; also that the five per cent commission to be paid Taussig “ shall not be due and payable until the completion of the installation of said fixtures to the satisfaction ” of defendant and its acceptance thereof; that “if for any reason ” defendant “ shall not install said fixtures * * * then and in that case the commission to be paid” Taussig “shall not exceed the sum of four per cent (i%) on the contract price, in the event contracts for the construction have been let. If contracts for the construction thereof have not been let * * * the consideration to be paid ” Taussig “ shall be determined by a board of arbitrators, one to be ” appointed by Taussig, another by defendant, and the two to select a third, the decision of the three as to the amount of commission to be paid to be binding.

For a first cause of action the complaint alleges that between February 15, 1909, the date of the contract, and October of that year, notwithstanding defendant failed and refused to furnish Taussig with the necessary details and information for the completion of his work, he (Taussig) in fact did a large portion of the preliminary work incident to his employment and completed a considerable part of the entire work he had assumed to do, but that thereafter the defendant discharged him and subsequently employed another person, who completed his work, and that the defendant had actually installed all the fixtures covered by the contract at a cost of about $200,000. For relief plaintiff demands $10,000 as damages in addition to $205, being one-half of Taussig’s necessary traveling expenses.

The second cause of action is on a quantum meruit and for moneys expended, and judgment for $8,500 is demanded.

It was practically conceded on the argument that so far as the $205 alleged to have been expended by Taussig during the time he was serving under the contract was concerned, the dismissal of the complaint was wrong. Defendant is not necessarily bound by such concession, and I can see no reason, if plaintiff is not entitled to recover anything for his assignor’s services, why he is entitled to recover any part of his disbursements incident thereto, because his right to recover anything would seem to depend upon identical conditions, namely, his carrying out the contract on his part.

The greater part of the argument at bar was devoted to a construction of the arbitration clause. But, I think, this has nothing to do with the case and that it attached only in the event that the proposed installation of the fixtures should be abandoned or should they for any other reason be not installed. The case reduces itself to this: Did the contract impose on the defendant any obligation whatsoever? The question is not whether defendant could have abandoned the projected work, or whether it could have discharged Taussig for sufficient reasons, but whether it could arbitrarily or capriciously at any time deprive Taussig of the right to earn the agreed compensation notwithstanding defendant itself continued the proposed work to completion. The fact that the contract contains no express covenant on defendant’s part is immaterial. In every contract there is an implied undertaking on the part of each party that he will not, intentionally, do anything to prevent the other from carrying out the agreement on his part. In the contract before us the law implies a covenant on defendant’s part that Taussig should have an opportunity to earn his compensation, provided the projected work was proceeded with, and so long as Taussig observed the express or implied obligations imposed upon him. Such a covenant necessarily arose out of the grant to Taussig of the privilege to earn the compensation agreed on, and any wrongful act of defendant destroying such privilege was a breach of the contract, which relieved Taussig from further performance on his part. (Patterson v. Meyerhofer, 204 N. Y. 96; City of New York v. Delli Paoli, 202 id. 18.)

In this situation plaintiff is entitled at his election to recover on quantum meruit under an implied contract for the value of the services actually rendered by his assignor, or for compensatory damages for the loss he sustained by defendant’s breach.

The exception should be sustained and the motion for a new trial granted, with costs to plaintiff to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Exceptions sustained and motion for new trial granted^ with costs to plaintiff to abide event. Order to be settled on notice.