Sutherland v. Morris

New York Supreme Court

Sutherland v. Morris

52 N.Y. Sup. Ct. 259, 10 N.Y. St. Rep. 348

DecidedJuly 15, 1887

StatusPublished

This text of 52 N.Y. Sup. Ct. 259 (Sutherland v. Morris) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sutherland v. Morris, 52 N.Y. Sup. Ct. 259, 10 N.Y. St. Rep. 348 (N.Y. Super. Ct. 1887).

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Opinion

Dykman, J.:

The plaintiffs in this action made an agreement with the defendant to furnish materials and labor for the masonry work of a new [260]*260bouse. Tbe contract was in writing, and by it the plaintiffs undertook to perform their work agreeably to the drawings and specifications which are referred to as signed by the parties and annexed thereto.

The specifications were not, however, signed by the parties so far as we can learn from the record before us, but, in legal effect, they were incorporated in the contract. They contained this important provision in words : “ The contractor will take notice that there will be no extra work done unless agreed upon by the superintendent, the price put in writing and signed.”

This action was commenced to recover for work, iaDor and materials extra, and outside of the written contract and specifications, and the effort of the plaintiffs upon the trial was to introduce proof of the labor and materials furnished beyond the requirements of the contract, without a compliance with the condition precedent which required the procurement of the agreement of the superintendent and the reduction of the price to a subscribed writing before any extra work could be performed upon the building.

The exclusion of the testimony of the plaintiffs proceeded upon the failure to comply with the condition, and they must all be sustained. The condition was introduced to prevent the very thing which the plaintiffs now attempt. The contractors had before them a specific delineation of the work they were required to perform, and they were never requested to do anything more than to complete what they undertook in conformity with their contract.

The recovery seems to fairly include all the legal liabilities of the defendant to the plaintiffs, and the judgment should be affirméd, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.

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Dykman, J.:

The plaintiffs in this action made an agreement with the defendant to furnish materials and labor for the masonry work of a new [260]*260bouse. Tbe contract was in writing, and by it the plaintiffs undertook to perform their work agreeably to the drawings and specifications which are referred to as signed by the parties and annexed thereto.

The specifications were not, however, signed by the parties so far as we can learn from the record before us, but, in legal effect, they were incorporated in the contract. They contained this important provision in words : “ The contractor will take notice that there will be no extra work done unless agreed upon by the superintendent, the price put in writing and signed.”

This action was commenced to recover for work, iaDor and materials extra, and outside of the written contract and specifications, and the effort of the plaintiffs upon the trial was to introduce proof of the labor and materials furnished beyond the requirements of the contract, without a compliance with the condition precedent which required the procurement of the agreement of the superintendent and the reduction of the price to a subscribed writing before any extra work could be performed upon the building.

The exclusion of the testimony of the plaintiffs proceeded upon the failure to comply with the condition, and they must all be sustained. The condition was introduced to prevent the very thing which the plaintiffs now attempt. The contractors had before them a specific delineation of the work they were required to perform, and they were never requested to do anything more than to complete what they undertook in conformity with their contract.

The recovery seems to fairly include all the legal liabilities of the defendant to the plaintiffs, and the judgment should be affirméd, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.

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Bluebook (online)

52 N.Y. Sup. Ct. 259, 10 N.Y. St. Rep. 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutherland-v-morris-nysupct-1887.