Clarence Delafield, Appellant and Respondent, v. The Village of Westfield, Respondent and Appellant

Clarence Delafield, Appellant and Respondent, v. The Village of Westfield, Respondent and Appellant. Contract for the construction of water works—partial payments are to be based upon work done and materials furnished, and not simply upon completed work— duly of the employer to furnish the contractor with working plans — a breach by the contractor, induced in part by the employer’s default, is not a complete defense to the employer —interest not allowed where the claim is unliquidated. A clause in a contract, entered into between a municipality and a contractor, for the construction of a system of water works, providing that “ the party of the first part (the municipality) agrees that their executive committee will cause an estimate to be made before the tenth day of each month, of the value of the labor and materials on all work completed up to the first day of the same month, and will on said 10 day of each month, pay to the party of the second part (the contractor) as a partial payment, 90 per cent of the contract price of such completed Work,” should be construed with reference to the well-known and uniform practice under such contracts; that is, as entitling the contractor to monthly payments of ninety per cent of the value of materials furnished and labor performed during the preceding month, and not merely to ninety per cent of the value of the labor and materials which entered into the work completed during the preceding month. Where the specifications forming part of the contract are not sufficiently definite to enable the contractor to complete the work, it is the duty of the municipality to furnish, in advance of the contractor’s entering upon the performance of each specific portion of the work, detailed working plans, definitely describing how such work is to be performed, notwithstanding the fact that the contract does not specifically require such plans to bo furnished. The breach of the contract by the contractor, induced in whole or in part oby a previous breach on the part of the municipality, does not constitute a compíete defense to an action against the municipality hy the contractor to recover the value of work done and materials furnished in the partial execution of the contract. In such a case the claim of the contractor, being unliquidated, does not draw interest. Cross-appeals by the plaintiff and the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Chautauqua on the 18.th day of May, 1898, upon the report of a referee, separately stating the facts found and the conclusions of law. The defendant is an incorporated village of this State, and in 1889, pursuant to chapter 181 of the Laws of 1875, and the acts amendatory thereof, entered upon the construction of a system of water works. April 16, 1889, the defendant published its general plans and specifications, and advertised that it would receive proposals for the construction of the work. June 24, 1889, the plaintiff signed a proposal for doing the work and furnishing the materials at ¡Drices specified, which proposal was accepted by the defendant, ■and a contract was entered into between the parties July 1,1899, by which the plaintiff agreed to complete the work on or before December 1, 1889, for prices agreed on for work to be done and materials to be furnished. The contract provided that three of the items contained in class 3 should be constructed for lump sums, to wit, the Hawley filter and cistern for $1,500 ; valve house at main reservoir for $100; main reservoir well for $54.60, but the remainder of the work and materials furnished were to be paid for by quantities, at prices -fixed. As security for the performance of this contract the plaintiff deposited with the defendant a certified check for $2,000. The plaintiff entered upon the construction of the work shortly after the execution of the contract, and continued until about December 10,1889, when various differences, which had arisen during the performance of the contract, culminated-in a resolution, adopted by the board of water commissioners December 17, 1889, annulling the contract on the alleged ground that the plaintiff had failed to perform it according to its terms and conditions. After the receipt of a copy of that resolution the plaintiff did not furnish further materials, or do anything in execution of the contract, and, February 20, 1890, he brought this action to recover for labor performed and materials furnished under the contract, and for damages, alleged to be $10,000, for the defendant’s breach of the contract and its failure to perform the same. The referee to whom the issues were referred ordered a judgment « for the plaintiff for $12,608.70, disallowing the plaintiff’s claim for interest on the items making up said sum, and disallowing the plaintiff’s claim for damages alleged to have been sustained by defendant’s termination of the contract. The plaintiff excepted to the disallowance of interest, and also to the denial of his motion to amend his complaint so as to claim interest. The defendant filed exceptions to all the conclusions of law. The principal appeal is the defendant’s, which will be first considered. David McClure, for the plaintiff. Frank, W. Stevens, for the defendant. [MAJORITY — Follett, J.:] Follett, J.: This action has been twice tried. On the first trial the referee held that the defendant was not required by the contract to pay on the tenth day of each month ninety per cent of the value of all materials furnished and labor performed during the preceding month, but was bound to pay only ninety per cent of the value of such work as had been fully completed and of materials used in completed work. The referee also held that the 'provision in defendant’s proposals, “ The vitrified pipe line is mostly and the tunnels are entirely to be in soft shale rock,” was not binding on the defendant. On an appeal to the General Term it was held that, these constructions of the contract were erroneous, and a new trial was granted. (77 Hun, 124.) The contract provided : “ The party of the first part (the defendant) agrees that their executive committee will cause an estimate to be made before the tenth day of each month of the value of the labor and materials on all work completed up to the first day of the same month, and will on said 10tli day of each" month pay to the party of the second part (the plaintiff), as a partial payment, 90 per cent of the contract price of such completed work.” The referee, before whom the trial now under review was had,, followed the rule laid down by the General Term, that the plaintiff was entitled to be paid oil the tenth day of each month ninety per cent of the value of materials' furnished and work performed during the preceding month, and decided as a question of fact that the defendant had failed to perform this stipulation in the contract. The decision of the General Term upon this clause of the contract is. sought to be reopened in this court. ' It seems to me that this construction of this clause, which is quite indefinite, is the only one which is permissible. Under the defendant’s theory, in case a large-amount of iron pipe had been delivered on the works, or one of the reservoirs had been nearly completed, the contractor would not be-entitled to any advance because the reservoir was not completed and the iron pipe in place. This clause should be construed with reference to the well-known and uniform practice under such contracts ; that is, that the contractor is entitled to his percentage upon the value of his work done and materials furnished during the-preceding month. I think the General Term correctly construed this clause in the contract; and this being the correct construction, it is not contented by the defendant that it had paid monthly the-amounts to which the plaintiff was entitled. In July, 1889, the plaintiff began the construction of the principal or “ Kent Reservoir,” and shortly afterwards was stopped by the-owner of the fee of the land upon which the reservoir was to be constructed because the village had not acquired title to the land, and for more than a month labor was suspended upon that part of the-work because the title had not been acquired, which was solely th& defendant’s fault. The referee also found, upon evidence which is ample to sustain the-finding, that the vitrified pipe line was not mostly and the tunnels-entirely in soft shale rock, but, on the contrary, that these excavations were in solid rock, which caused additional expense and delayed the prosecution of the work, for which the. plaintiff was entitled to extra compensation. These were the failures on the part of the defendant' which the referee specifically found. Tliedefendant did not furnish detailed working plans, definitely describing how the several parts of the work were to be performed, and. the referee was of the opinion' that as the contract did not speciii■cally require that such plans he furnished, the defendant was not bound to furnish them. In this I think the referee erred, for it is ■clear that the specifications which form part of the contract are not ■sufficiently definite to enable any contractor to complete the work, unless full discretion was vested in him to determine precisely how ■every part of the work was to bo done. Such was not the intention ■of the parties to the contract; nor was it reasonable for the defendant to assume to give daily instruction to the plaintiff’s laborers as to' how the work should be constructed, but it was its duty to furnish ■detailed statements in advance of the plaintiff’s entering upon the performance of a specific portion of the work so that, for example, he could know how much was tobe excavated here, and what grades were to be adopted for the pipe line throughout its route; a profile ■of its line, showing elevations, depressions, etc., should have been furnished in advance of entering upon the work, for it was not intended that the pipe line should be buried just six feet below the surface of the earth at all points, which would leave irregular pipe lines, with frequent changes of grade, of much less strength than lines properly laid. So, in respect to the reservoirs, detailed plans showing their flow lines and the depth to which the excavations were to be carried at all points within these lines should have been furnished. Such plans were absolutely necessary to enable the plaintiff to prosecute, with advantage, the work in which he was engaged, ■and the defendant was not justified in simply giving daily instructions as to what the plaintiff should do in these respects. The learned referee held that, by reason of the defendant’s failure to pay monthly ninety per cent of the value of the work done and materials furnished during each preceding month, and by its delay in acquiring title to the land for the Kent reservoir, and because the ■excavations for the vitrified pipe line and the tunnels were in hard instead of in shale rock, the plaintiff was excused for not completing his contract bv the 1st of December, 1889. Aside from the failure to complete the work within the time contracted, the referee found that the plaintiff had failed to lay several hundred feet of the pipe lines six feet below the surface, and that by reason thereof the ■defendant was damaged to the extent of $2,000, which sum the referee deducted from the amounts found due the plaintiff for work ■done and materials furnished. Both parties having broken the contract, and the defendant’s breaches being a perfect or partial excuse for the plaintiff’s failures,, the latter’s breaches are not a complete defense to his action h> recover the value of labor performed and materials furnished. A party to a contract, whose failures to perform it have contributed h> the failures of the other party to perform, cannot urge that the failures of the latter are an absolute defense to an action brought by him to recover for partial performance. It is not urged in behalf of the defendant that the referee erred in the admission or rejection of evidence, and I am of the opinion that the defendant has failed to demonstrate that the referee has. erred to the prejudice of the defendant, and that this appeal cannot be sustained. But a single question is urged in support of the plaintiff’s appeal, which is that the referee erred in not allowing him interest on all or some of the items making up the sum recovered. The case does not show that the defendant has collected the plaintiff’s certified check for §2,000, deposited by the plaintiff as security for his performance of the contract, and in the absence of such evidence the plaintiff is not entitled to interest on that item. The other items making up. the recovery were unliquidated. Neither the quantities of the work performed nor the quantities of materials furnished, for which the prices were agreed on, had been ascertained, nor could they be readily ascertained by the defendant, and the amount when ascertained was subject to a reduction for damages sustained by the defendant for improper performance by plaintiff of some of the work, and the amounts due for extra work, for which prices were not agreed on, were clearly unascertainable without taking evidence. The claims recovered by the plaintiff were unliquidated. (Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y. 331; Gray v. Central R. R. Co. of N. J., 89 Hun, 477; affd., 157 N. Y. 483.) I think no error was committed in refusing to allow the plaintiff interest on the several items included in his recovery. The judgment is affirmed, without costs to either party, as both have appealed and neither has succeeded. All concurred. Judgment affirmed, without costs to either party.