Howard Iron Works, Respondent, v. Pittsburg Steel Construction Company, Appellant

Howard Iron Works, Respondent, v. Pittsburg Steel Construction Company, Appellant. Fourth Department, March 8, 1911. Contract — agreement to furnish counterweights for bridge — recovery measured by weight furnished — change in plan — agreement to pay additional rate for extra work — measure of recovery. Where a contract by which the plaintiff agreed to furnish counterweights for a lift bridge provided that the number of pounds stated in the specifications was a mere estimate for the assistance of bidders and that counterweights must bo furnished to balance the moving span in all positions, the contractor is entitled to recover for the weight of the counterweights necessary to the successful operation of the bridge as constructed whether that weight be more or less than that estimated. But under such agreement the contractor was only required to furnish counterweights sufficient to balance the span if built according to the original plan, and where the plan was changed during construction so that additional net weight in the counterpoise was required, and a supplementary agreement was made allowing the contractor a higher compensation per pound for the extra weight, he is entitled to payment at the advanced rate for the net amount of additional weight furnished. " But where, owing to the change in plans, the weight of certain members of the bridge was reduced while the weight of other members was increased, the contractor is only entitled to recover at the advanced rate agreed upon for the net excess in weight. He is not entitled to figure the excess by treating the reduction in weight of certain members of the bridge as a cancellation of the contract pro tanto and treating all the weight necessary to counterbalance members whose weight was increased as extra material furnished. Appeal by the defendant, the Pittsburg Steel Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of May, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes. Rogers, Locke & Babcock [Chauncey J. Hamlin of counsel], for the appellant. Edward G. Randall, for the respondent. [MAJORITY — Robson, J.:] Robson, J.: Plaintiff had a contract with defendant by which it agreed, among other things, to furnish counterweights to counterbalance as it was raised or lowered the movable, or uplift, span of a bascule bridge, which defendant had agreed to build for the city of Buffalo. The specifications, which were a part of defendant’s contract witli the city for the building of the bridge, are made a part of plaintiff’s agreement with defendant, and all requirements as to the counterweights to be furnished are to be found only in these specifications. The estimated weight of the counterpoise, which the bridge would require, is stated in the specifications to be 636,000 pounds, but this estimate is in terms furnished only for the assistance of bidders, and reference is expressly made to a preceding paragraph of the specifications, which provides that “ these plans show the loading requirements, general dimensions and such details as necessary for an intelligent bid upon the work, but the bidder hereunder must check the same and make his own estimate of weights and quantities, those shown being furnished only as a check upon such figures, quantities and dimensions.” It is further provided that the movable span shall be balanced by two counterweights, one for each truss, attached and arranged in such specified manner “ as to cause the counterweights to balance the weight of the moving span in all positions except when down, when the span is to preponderate not more than 1 per cent in order to produce a downward reaction at the outer end.” The sole purpose of the counterweights was to balance the movable span of the bridge when in operation. When the specifications were prepared the necessary counterweight for that purpose could not, as the evidence shows, be accurately fixed. The contractor agreed to supply enough for that purpose; he did not agree to do more. If the span, built according to the specifications, required for its successful operation more than the estimated amount of counterweights, he must furnish them. (Dean v. Mayor, eta., 167 N. Y. 13; Sullivan v. President, eta., of Village of Sing Sing, 122 id. 389; Lentilhon v. City of New York, 102 App. Div. 548 ; affd., 185 N. Y. 549.) Conversely, if less than the estimated amount was sufficient, by furnishing that amount he did all his contract required. It appears that the span as actually built was not in accordance with the original plans. The result was that by using thinner planking the weight of the span was reduced by 20,000 pounds. A change in the stringers of the bridge and the addition of streetcar rails and fasteners added 53,632 pounds. The net addition to the weight of the span was 33,632 pounds. This added weight made necessary an additional amount of counterweights to the extent of 47,084 pounds. These were furnished by plaintiff. Defendant agreed to pay plaintiff for counterweights^ which it was not required to furnish under its original contract, at the rate of two cents per pound. Plaintiff, being only required to furnish counterweights sufficient to balance the span built according to the original plan, it was, therefore, entitled to payment for the net amount of additional weights required to balance the span as actually built at the rate agreed upon, amounting to $941.68. To apply upon this amount defendant has paid $490. The balance of $451.68, with interest, plaintiff is entitled to recover of defendant. In addition to this amount plaintiff’s recovery in the trial court included the sum of two hundred and thirty-eight dollars, which is arrived at by treating the reduction of 20,000 pounds in weight of the span, due to the change in planking, as a cancellation of the corresponding amount of counterweights to be furnished under the contract, being 28,000 pounds, and again charging defendant with this 28,000 pounds as additional counterweights furnished. Plaintiff had agreed to allow for counterweights canceled at the rate of one dollar and fifteen cents per 100. The net result of this method of computation is, therefore, that plaintiff would allow one dollar and fifteen cents per 100 on 28,000 pounds as canceled, and receive two dollars per 100 on this same 28,000 pounds as additional counterweights furnished under its modified contract, making a difference of eighty-five cents per 100 in its favor. But it is conceded that no cancellation of counterweights was actually made. On the contrary, not only the amount which plaintiff was required to furnish, but a considerable amount in addition thereto, as has already appeared. The judgment should be modified by reducing plaintiff’s recovery of damages to the sum of $517.85 as of the date of the judgment, and as modified affirmed, without costs of this appeal to either party. All concurred. Judgment modified in accordance with the opinion, and -as modified affirmed, without costs of this appeal to either party.