FRANK W. MOLLOY, Respondent,
VILLAGE of BRIARCLIFF MANOR, Appellant.
APPEAL by the defendant, the Village of Briarcliff Manor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of July, 1910, upon the decision of the court, rendered after a trial at the Westchester Trial Term, the jury having been excused by consent.
William Woodward Baldwin, for the appellant.
L. Laflin Kellogg, for the respondent.
The defendant appeals from a judgment against it for the sum of $10,680.48 damages and costs, recovered by the plaintiff as an alleged balance due under a written contract between the parties for the construction of a public highway of the defendant. The contract in question was based upon plans and written specifications which in express terms were made a part of the contract itself. It provided for the doing of all the work and the furnishing of all the materials required by the plans and specifications for the lump sum of $31,900. The contract further provided as follows: 'For any increase or deduction which may be made for changes as provided for in the specifications aforesaid' (here follows an enumeration of twenty-two different items of work with a price specified for each). The specifications contained a clause as follows: 'The engineer shall have the right to make such changes in the plans and specifications either before or after the contract is awarded or as may from time to time appear desirable and such changes shall in no wise invalidate the contract. The contract price shall be increased or decreased in accordance with the schedule of prices bid by the contractor. Should any work be required that is not included in plans and specifications such work shall be done under the written order of the engineer after price has been agreed therefor, and approved by the Board of Trustees.' The written bid of the contractor provided as follows: 'I do hereby offer and agree to furnish all the materials to fully and faithfully perform all the work in accordance with plans and specifications and complete in a workmanlike manner the above work for the sum of $31,900.00. I hereby agree to accept the following named unit prices for any increase or deduction which may be made for changes as provided for in specifications for said improvement' (here follows an enumeration of twenty-two separate items with prices, the same as that set forth in the contract itself). The specifications contained a heading, 'Instructions to Bidders,' under which appeared a provision as follows: 'Bids will be made upon the blank form attached to specifications, said specifications with original bid will be attached to and form part of the contract. A lump sum proposal shall be made.' The
specifications contain a further provision headed 'Engineer's Estimate of Quantities,' with a list of quantities, together with a clause relating thereto as follows: 'The Contractor must satisfy himself regarding the conditions governing the work, of the nature and extent of the materials required in the work.' The contract provided, on this point, as follows: 'The party of the second part [the contractor] admits and agrees that the amounts and quantities of materials to be furnished and work done, as stated in the proposals for estimate for the said work, are approximate only; that the said party of the second part is satisfied that the engineer's estimates of quantities is sufficiently accurate to determine the prices according to which he agrees to do the work required by this contract in accordance therewith; and that he shall not or will not at any time dispute or complain of such statement, nor assert that there was any misunderstanding in regard to the depth or character of the excavation to be made or the nature or amount of the materials to be furnished or work to be done,' etc.
The plaintiff has performed the work required to be done under his contract, except possibly as to an insignificant detail as to which he makes allowance, and the present controversy between the parties is as to the balance due after crediting payments made. The plaintiff claimed a balance of $9,133.18 and recovered therefor, while the defendant admitted a balance due of $5,064.47, subject to a deduction of $102.31. The contract contained the usual clause for the certificate of the engineer as a condition precedent to payments, together with the usual provision that such certificate should be final and conclusive. A certificate was given by the engineer, but it is challenged by the plaintiff as false and fraudulent, and also as based upon an erroneous interpretation of the contract provisions. There is nothing in the record to show any fraud or intentional misconduct on the part of the engineer in the making of the certificate, but there is quite a controversy whether he did not make a palpable mistake in construing the contract provisions according to which he attempted to compute and adjust the amount payable to the plaintiff on the final payment. The principal dispute between
the parties arose as follows: The specifications contained a clause as follows: 'Surplus excavation estimated at 8,000 cubic yards shall be hauled by contractor to Scarborough Dock to be used in filling in the same.' After the work was begun it was found that Scarborough dock could not be used by the parties to the contract, and the engineer directed that the surplus excavation should be hauled elsewhere. This surplus excavation amounted actually to 9,456 cubic yards instead of 8,000 yards as estimated. Scarborough dock was about one mile from the highway under construction, and at the end of a downhill grade. The material to be supplied by the contractor was to be delivered to him at this dock, and his plan of operation contemplated sending to the dock his trucks loaded with surplus earth, the trucks to return with materials to be used in the performance of his contract. As before indicated, the contract contained an enumeration of items and prices for 'any increase or deduction which may be made for changes as provided for in the specifications,' and among such items was one as follows: 'Overhaul, per cubic yard, per mile the sum of .528.' A similar enumeration of items in the specifications contained the same item and price. The word 'overhaul' seems to have been used as synonymous with 'surplus excavation.' The plaintiff claims an allowance for every cubic yard of surplus excavation at the rate of fifty-two and eight-tenths cents a cubic yard, while the defendant's engineer has allowed him but for 4,405 cubic yards at the rate of thirty-five cents a cubic yard, making a difference between plaintiff's claim and the defendant's allowance of $3,451.02. It appears that this surplus excavated material was hauled to and disposed of at various places, none of them requiring a haul of more than 3,500 feet, and some of them along the line of the improvement itself. As stated, the engineer allowed for 4,405 cubic yards at the rate of thirty-five cents a cubic yard. This allowance was computed by taking as a standard the actual maximum haul of 3,500 feet and fixing the charge at the rate of fifty-two and eight-tenths cents a mile, making a cent a mile. For the remaining 5,051 cubic yards he made no allowance at all, on the theory that this material was not hauled away from the place of the improvement and did not constitute 'overhaul'
in the sense in which the word was used between the parties. The trial court adopted the plaintiff's claim and made allowance for 9,456 cubic yards of 'overhaul' at the rate of fifty-two and eight-tenths cents a yard, irrespective of the distance of the haul. In so doing the learned court fell into error. The contract between the parties was for a lump sum, unless changes should be made thereafter in the plans and specifications entailing more or less work. If such changes were made, and the work to be done, because thereof, was increased or decreased, then either increase of payments or allowance of credits were to be made as to various items of work at scheduled prices. There is no proof and no claim that any changes were made in the plans and specifications which increased the amount of surplus excavation or 'overhaul.' It is true that the engineer had estimated the amount of surplus excavation or 'overhaul' at 8,000 yards and it turned out to be actually 9,456 yards. Yet this estimate of the engineer was stated in the specifications to be approximate only, and so agreed in the contract between the parties. If the 'overhaul' had been carried to Scarborough dock, as provided in the specifications, the contractor would not have become entitled to recover at a unit price for the excess of actual surplus excavation over the approximation thereof in the specifications. Nor if the amount of said overhaul had been less than the approximation, would the defendant have been entitled to a credit or deduction at the scheduled unit price. Both the plaintiff pleaded and the trial court found that the contract between the parties was an item contract and not one for a lump sum, and in this both the plaintiff and the court erred, for there was concededly but one ...