Mehrle v. American Bridge Co.

115 N.Y.S. 724

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 16, 1909
• Status: Published

Opinions

SEABURY, J.

In this action the plaintiff seeks to recover $500, alleged to be the reasonable value of services performed by the plaintiff on behalf of the defendant in moving furniture and office equipment from the defendant’s place of business. These services were performed under a contract which is expressed in five letters exchanged between the parties. Under this contract the plaintiff agreed to perform the work “any time, day or night, at your [defendant’s] convenience during the month of April,” 1908. The defendant contends that it subsequently designated April 15th as the date upon which the moving should be completed. It was the contention of the plaintiff, however, that the defendant fixed April 16th as the time within which the plaintiff was required to complete the work. The judgment of the court below in favor of the plaintiff has resolved this question of fact in favor of the plaintiff.

The evidence shows that the plaintiff moved 95 van loads of furniture and nine safes and two machines, and that all of this work was done by April 15th. The plaintiff, on April 15th, was engaged in the work from 9 o’clock in the morning until 12 o’clock that night. On the evening of April 15th the plaintiff was seriously embarrassed in the performance of this work by reason of the fact that the men who had been operating the elevators in the building in which the furniture was located ceased their work for over 1 hour and 30 minutes. This cessation of work was caused by a dispute as to who should pay the men operating the elevators for overtime. The plaintiff was not required to assume this obligation, and it is clear that, when the contract was made, it was contemplated by the parties that the plaintiff should have the use of the elevator service while engaged in removing the furniture from the building. This delay, which materially affected the plaintiff in the performance of the work, cannot be attributed to the plaintiff. On the morning of April 16th the plaintiff reported at the building and was ready to proceed with the work. The defendant refused to permit the plaintiff to perform, and gave the contract to remove the balance of the furniture to a third party. At this time all of the furniture had been removed except 15 van loads, and the evidence shows that the work could have been completed on April 16th if the defendant had permitted the plaintiff to complete the contract.

It is significant that, although the defendant refused to allow the plaintiff to remove the balance of the furniture on April 16th, yet it did allow a subcontractor of the plaintiff to remove two safes on the afternoon of that day. In other words, the defendant, claiming that the plaintiff had been guilty of a breach of the contract, elected to rescind it as to the furniture and to allow performance as to the removal of the safes. This position is inconsistent and untenable. The defendant could not rescind the contract, and accept the benefits which accrued from work subsequently performed under it, and then defeat the plaintiff’s right to recover upon a quantum meruit. The evidence abundantly establishes that the work performed by the plaintiff was fairly and reasonably worth the sum for which the court below gave judgment for the plaintiff.

The judgment is affirmed, with costs.

GILDERSLEEVE, P. J., concurs.