National Contracting Co. v. Hudson River Water Power Co.

118 A.D. 665, 103 N.Y.S. 641, 1907 N.Y. App. Div. LEXIS 735

Opinions

Clarke, J.:

The action was brought to recover damages' for the defendant’s alleged breach of contract for the construction of a dam and power plant upon the Hudson river, in the counties of Saratoga and Warren, at a place known as Spier Falls. The defendant, claiming that the breach of contract had been by the plaintiff, pleaded as a counterclaim its damages resulting from said breach.

Upon a former trial the plaintiff recovered a judgment for the ' sum of $554,680.43. Upon appeal to this court said judgment was reversed and a new trial ordered before another referee. (110 App. Div. 13,3.)

The learned referee upon the second trial, upon a record substantially similar, governed by the law and the interpretation of the facts as laid down by this court, dismissed the complaint. The court having held that the contract had been breached by the plaintiff and not. by the defendant, upon the former record, and the referee having reached the same conclusion upon this record, it follows that the defendant was entitled upon its counterclaim to such damages as it was able to show were the direct consequences of said breach by- the plaintiff. The measure of damages in such a case is the difference between what the defendant would have had to pay to plaintiff under the contract, if the plaintiff had performed, and the actual cost to the defendant of completing the work, provided that the same was fair and reasonable.

“ A party to a contract which has been broken by the other has a right to fulfill it for himself as nearly as may be, but he must not do this unreasonably as regards the other party nor extravagantly.” (Sixth. Dam. [3d ed.] 268.)

“ The measxxre of damages for the breach of the defendant’s covenant was the reasonable cost of the work. The city could not pi'oceed in a reckless or extravagant manner, and charge the defendant for expenses unnecessarily or unreasonably incurred.” (Mayor, etc.,- of N. Y. v. Second Ave. B. B. Go., 102 N. T. 572.)

“The reasonable value of the work necessarily done * * *

to fully complete the contract according to the plans and specifications should have been deducted from the conti’act price.” (Powers v. Oity of Yonlcers, 114 N. T. 145.)

Although the point was not in any manner raised upon the trial before the referee, it is now suggested for the first time that the general rule of damages hereinbefore set forth does not apply. It is claimed that the contract itself in paragraph “ 0,” pi'ovides the measure of damages recoverable by the deféndant upon a breach by the plaintiff. This claim was not presented by the pleadings. The complaint asked damages “ not only in the value of the work done and materials and machinery purchased * * * but also in the amount of profits that it would have made if it had been permitted to proceed and carry out the terms and conditions of said contract.” The answer alleged abandonment and refusal to proceed by plaintiff and claimed damages by reason of the failure, neglect and refusal by the plaintiff to perform, and that defendant has been and will be put to great cost and expense in proceeding with the said dam. The reply denied each allegation of the fourth defense and counterclaim.

It does not seem that the provisions of paragraph “ O ” of the contract are applicable. That paragraph is as follows; “ The said contractor further agrees that if the work to be done under this contract shall be abandoned, or if at any time the engineer shall be of the opinion, and shall so certify in writing to the company, that the said work is unnecessarily and unreasonably delayed, or that the said •contractor is wilfully violating any of the conditions or agreements of this contract, or is not executing said contract in good faith, or fails to show such .progress in the execution of the.work as will give reasonable grounds for anticipating its completion within the required time,-the said company shall have power to notify the said contractor to discontinue all work, or any part thereof, under this contract; and thereupon the said contractor shall cease to continue said work or such part thereof as the said company may designate, and the said company shall thereupon have the right at their discretion to contract with other parties for" the delivery or completion of all or any part of the work left uncompleted by said contractor, or for the correction of the whole" or any part of said work. And in case the expense so incurred by said company is less than the sum which would have been payable under this contract if the same had been completed by the said contractor, then the said contractor shall be entitled to receive the .difference; and in case such expense shall exceed the last said sum, then the contractor shall, on demand, pay the amount of said-excess to the said company, on notice from the said company of the excess so due; but such excess to be paid by the contractor shall not exceed the amount of the security for the performance of this contract.”

It will be noticed that that is an agreement on the part of the contractor. The contractor agrees that if it “ is wilfully violating any of the conditions or agreements of this contract or is not executing said contract in good faith,” etc., the company shall have power to notify it to discontinue all work and at'its discretion contract "with other parties for the delivery or the completion of all or any part of the work left uncompleted by said contractor..

The paragraph, it seems to me, conferred, a power upon the defendant which it could exercise if it wished, and the provisions of the paragraph became operative only upon the exercise of that power. It meant that if, upon the report of the engineer in charge, the water company was so dissatisfied with the manner in which the contracting company, was performing its contract that it notified it to cease work and then made a new contract with another contractor, in the event that the new contract turned out to he more advantageous to the company than the old, the original contractor was to receive the difference; and if, on the other hand, it turned out less advantageous, the original contractor was to pay the difference up to $25,000. It was in the nature of a guaranty, on the part of the original contractor, that no other contractor could do the work for less than it had agreed to do it, and if any other contractor did so do the Work, the original contractor would pay the difference up to $25,000. But it was not in consequence of any notice to the contractor by the company to cease work that the plaintiff abandoned the job and the defendant did not exercise its discretion to make a new contract after such notice to the-plaintiff to cease work. There . was a total abandonment by the National Contracting Company. It quit the works ; it took away its tools;. it breached the contract; it was not ordered off the premises; no notice was given it to cease work; it walked out, as has been found, unreasonably and wrongfully. The water power company proceeded to do the work itself, and it distinctly notified the plaintiff that inasmuch as it had abandoned the work, the defendant considered the abandonment and refusal to proceed a. breach of contract, and it proposed at once proceeding with the work and would hold the plaintiff responsible for all damages which it would sustain from such breach of the contract by it. To that measure of damages, the plaintiff entered no protest or objection.

It, therefore, seems to me that the provisions of paragraph “ O ” of the contract can in no way be applied to the' situation as it now exists before this court. I am confirmed in this view by the fact that although the case has been twice tried and twice appealed, no such contention was presented, either by pleadings, motion, argument or brief, until after the submission of the case upon this appeal upon leave given, a supplemental brief was filed raising the point for the first time. It is now too late to raise this point. Oases are to he reviewed upon appeal as presented below.

Therefore, the rule of damages to be applied to this case is the general rule hereinbefore first set forth and the case must be determined in accordance therewith.

The contract under consideration in the case at bar did not provide for the payment of a lump sum for the entire work called for. It provided a unit price for each class of work and construction required. It provided specifically in paragraph “ F,” “ That the engineer may make alterations in the line, grade, plan, form,.position, dimensions or material in the work herein contemplated or any part thereof, either before or after the commencement of the construction. If such alterations diminish the quantity of work to be done, they shall not constitute a claim for damages or for anticipated profits on the work that may be dispensed with; if they increase the amount of the work, such increase shall be paid for according to the quantity actually, doné and at the price established for such, work under this contract, or in case there is no price established, it shall be paid for at its actual cost as determined by the engineer, plus ten per cent of such cost.”

The learned referee has found as matter of fact that the defendant, after the plaintiff had abandoned the work of constructing the dam and doing the other work incident thereto, went on with the work under the contract and completed it at a cost to it in excess of the amount it would have been obliged to pay the plaintiff under its contract with it, of $383,852.60.

It appears from the evidence that said amount was arrived at in the following manner: It was in evidence that the construction of this dam necessarily involved the use of an extensive plant of machinery and apparatus for the work, consisting of cableways, der- ■ ricks, hoisting engines, air compressors, stone crusher, plimps, pumping engines, and all the picks and bars and tools that are employed, locomotives, cars, and steam drills. If the.plaintiff had performed, of course this plant would have been provided by it and the cost thereof would havéHeen included among its operating expenses and entered into its estimate of the unit price at which it undertook to do the several classes of work provided for the completion of the Contract. As it abandoned the work, and the defendant itself undertook its completion the defendant was required to procure said plant, and the cost thereof, about which there seems to be no controversy, was $323,689.66. Competent proof was offered that a fair estimate of the amount-of the depreciation; of such plant was from 40 to 5 0 per cent. The referee allowed 40 per cent which amounted to $129,475.86.

For boulder, concrete .and rubble masonry the plaintiff’s price per cubic yard was $4.55; the amount actually done by the defendant was 155,140.58 cubic yards, which would have amounted, if done by the plaintiff, to $705,889.64. The reasonable cost of said work, as testified to by the two experts, was between $5.50 and $8 per cubic yard. The actual cost, as established by the evidence, was $5.7071, making a total of $885,408.07, making the amount of the increased cost, which was at the same time a fair and reasonable cost, $179,518.43.

For random range ashlar the plaintiff’s price per cubic yard was $9.50. The amount done by the defendant was 10,171.82 cubic yards, which, if done by the plaintiff, would have amounted to $96,632.29. The reasonable cost of such work, as testified to by the two experts, was from $12 to $30 per cubic yard. The actual cost as established was $15.9867, which amounted for the work done to $162,611.64, making the increased cost of the work over the contract price to the defendant, which at the same time was fair and reasonable, $65,979.35.

The price for rock excavation as provided for by the contract was $1.75 per cubic yard. The amount actually done by the defendant was 129,523.8 cubic yards, which would have cost, if done by the plaintiff, $226,666.65. The reasonable cost of such work, as testified to by the two experts, was from $1.75 to $2. The actual cost to the defendant was $1.6616, making the total for that item of $215,228.51 actually spent. There was a decreased cost of this work over the contract ¡mice of $11,438.14.

For earth excavation the plaintiff’s price per cubic yard was $.30.-The amount done by the defendant was 53,437.2 cubic yards. The cost of this work if done by the plaintiff would have been $16,031.16. The reasonable cost for this work, as testified to by the experts, was $.45 per "cubic yard. The actual cost was $.6861, making a total of $36,132.64. As the actual cost, however, is not proved to have been a fair and reasonable cost, the defendant should not be allowed in this item an increased cost above $.45 per cubic yard, which would amount to $8,015.98.

For coping, the plaintiff’s price per cubic yard was $9.75; the amount done by the defendant was 99 cubic yards, which,at the plaintiff’s price would have amounted to $965.25. The reasonable cost, as testified'to, was $9, but the defendant actually did it at the price of $6.8774 per cubic yard, making a total of $680.87, a decrease, therefore, of $284.38.

The amount of the defendant’s claim is, therefore, made . up of the item for depreciation in value of the plant, and the five items hereinbefore enumerated. But there were numerous other classes of work provided for in the contract, and if the measure of damages is the difference between what it would have cost the defendant, if the plaintiff had performed, and the amount that it actually cost the defendant itself, we must, it seems to me, look at the whole contract. It is obviously unfair to pick out five classes of work upon which to base a claim for damages, and leave the other ^classes out of consideration, because it might be that as to the other classes the defendant has been enabled to do the work at a much lower price than that which it had promised to pay to the plaintiff, and if so, of course, the plaintiff was entitled to a credit therefor.

While it is true that under the contract the plans might be altered and the kinds and quantities of work increased or diminished, the burden" was put upon the defendant in establishing its counterclaim' to show that the classes of work called for by the contract, in regard to which it had not given evidence, were classes of work which had been omitted by reason of a proper change of plans. It gave no such testimony. The plaintiff, on the other hand, did furnish testimony as to a number of these items and as to its estimated profit upon the amount called for at the contract price. In the absence of any evidence to the contrary whatever, the claims must be taken as established, and, therefore, from the amount allowed as damages for increased cost upon the five items must be taken the estimated profits as sustained by the plaintiff’s evidence as to the other items of the contract. These items áre as follows : 42,227 feet of timber work, plaintiff’s estimated profit $295.58; 14,414 feet of timber work, plaintiff’s estimated profit $100.89; dressing, estimate by plaintiff 20,240 square feet, plaintiff’s estimated profit $5,060 ; wrought iron and steel, 203,170 pounds, plaintiff’s estimated profit $5,079.25 ; superstructure and power station complete, plaintiff’s estimated profit $10,000 ; machinery to the amount of $307,809.54, .upon which plaintiff’s estimated profit was put at $30,780.95 ; canal .dam overflow, 353 cubic yards, plaintiff’s estimated profit $1,147.25 canal dam second els. masonry, 233 cubic yards, plaintiff’s estimated profit $349.50; brick work, 3,120 cubic yards, plaintiff’s estimated profit $31,200.

There are other items set up in the plaintiff’s schedules, but it appears that they are included within the five items already considered in the statement of the increased cost of the work. The result being, clearly sustained by the evidence, as it seems to me, that the amount of the increased cost on three items with the addition of the amount for depreciation of the plant, amounts to $382,989.62; that the decrease in cost on two items and the amount of the estimated profits on classes of work not included in the defendant’s claim amount to $95,735.94, for which the plaintiff is entitled to credit as against the amount of damages claimed as for increased cost, the conclusion being that the amount properly' chargeable upon this evidence, as damages accruing to the defendant by reason of the breach of contract by the plaintiff, was $287,253.68.

It follows, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event, unless the defendant stipulates to modify the judgment by reducing the amount found due to the above sum of $287,253.68, with the appropriate change of the interest sum, in which event the judgment appealed from'will be so modified, and as modified affirmed, without costs in this court.

Patterson, P. J., Ingraham and Laughlin, JJ., concurred.