APPEAL by the defendants, West Street Improvement Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1911, upon the report of a referee in an action to foreclose a mechanic's lien.
L. Laflin Kellogg, for the appellants.
William A. Keener, for the respondent.
The defendant John Peirce Company, which for brevity I shall hereinafter refer to as the defendant, contracted to erect a building for the defendant West Street Improvement Company on the west side of West street, between Albany and Cedar streets, in the borough of Manhattan. It invited bids from different contractors for doing the excavating work and preparing foundations, and, pursuant to that invitation, the plaintiff, on September 15, 1905, submitted a proposition in writing to excavate over the entire area of the lot down to the level of thirteen feet eleven inches below the curb, to furnish and drive piles of the number shown on plans exhibited, to excavate for and build concrete piers up to the grillage beams, to shore and underpin adjoining buildings if necessary, to excavate for the boiler pit, and to sheathpile the streets, build sidewalk bridges, and do all necessary pumping for the lump sum of $77,500, and to drive extra piles, make extra excavation and furnish materials for, mix and place concrete for cellar floor at stated unit prices. The defendant replied in writing, accepting the proposal upon condition that a satisfactory agreement should be signed that the work should be completed before January 1, 1906, and that for each day's delay beyond that time the plaintiff should pay the sum of $100. It was also proposed that the plaintiff should do certain additional work. Those conditions do not appear to
have been assented to. Nevertheless, without waiting for an agreement to be made and a formal contract to be executed, the plaintiff commenced to excavate for the building. The defendant caused specifications and a formal contract to be prepared, but when that was submitted to the plaintiff it refused to execute it for the reason that it had discovered in the progress of the work rock-filled cribbing where piles had to be driven, which, it claimed, was different from the situation indicated on the blue prints, upon which it had submitted its proposal. Thereupon, the defendant in a letter to the plaintiff stated its position in effect to be that the plaintiff was bound to complete the work in accordance with its proposal, notwithstanding unexpected developments, and suggested that the plaintiff could follow one of two courses: (1) Abandon the work and take the risk of being subjected to damages for breach of contract; (2) complete the work in accordance with the specifications, and if its view turned out to be correct, recover extra compensation on account of the new developments. Without anything more definite being agreed upon, the plaintiff continued the work. The original plans were changed from time to time, requiring extra work which the plaintiff performed.
The plaintiff pleaded in its complaint the contract evidenced by the letter of September 15, 1905, and sought to recover the stipulated lump sum specified in the contract, the stipulated unit prices for extra work and stipulated prices for extra work performed under subsequent modifications of the contract. On the hearing before the referee, the plaintiff was permitted, over the defendant's objection and exception, to introduce evidence in support of its claim that its proposal of September 15, 1905, was submitted under a mutual mistake of fact as to the presence of rock-filled cribbing, and at the close of its evidence was permitted to amend the complaint to conform to the proof. The plaintiff's evidence established the performance of work amounting, according to the stipulated unit prices and lump contract price, to $103,850.01. It had received $83,485.98, leaving unpaid the sum of $20,364.03, which with interest to the time of the judgment amounted to $25,937.11. The defendant does not question the plaintiff's right to recover that sum. The plaintiff also established without serious dispute
that the presence of rock-filled cribbing increased the expense of doing the work by the sum of $23,003.85, which with interest amounted to $29,299.25. The right to recover the latter sum only is involved on this appeal.
We shall assume that, upon the plaintiff's theory of the case, it could recover in this mechanic's lien suit the sum in dispute as for extra work, and that the admission of evidence to sustain that theory and the subsequent amendment of the pleadings to conform to it were proper, and shall come directly to the merits of the controversy. Negotiations leading up to the commencement of the work were conducted on behalf of the plaintiff by one Charles H. Deans, an engineer. The proposal of September 15, 1905, was signed, 'John Monks & Sons, per Chas. H. Deans.' Prior thereto, the defendant's engineer had invited Deans to submit a proposal, had furnished him a sketch of test borings made for the defendant, a blue print showing location of test holes and a section showing the position and character of the materials, and had informed him that the defendant had men on the lot digging pits in various places, and had invited him to inspect the premises. The sketch of test borings and the blue print section showed what any one familiar with the location would doubtless have known, even without that information, that the material to be excavated was filled-in or made land upon river mud and sand. Cribbing was indicated, though the extent of it was not shown, and upon the blue print plan there was a sketch showing a vertical section of what was styled 'typical old timber foundation,' indicating timber crib work, and in the spaces between the timbers, as shown on the sketch, was the word 'earth.' It is not entirely plain, at least to one who is not an engineer, whether the spaces marked 'earth' were intended to represent the interstices between the timbers or the pockets of the crib itself. The plaintiff's theory is that the typical timber foundation shown on the plan indicated earth-filled cribbing; that both parties contracted upon the assumption that that was typical of all the crib work; that its contract required it only to drive piles in earth-filled cribbing, and that it is, therefore, entitled to recover as for extra work the additional expense caused by the stone-filled cribbing. The defendant called
experts who testified that the typical section shown on the plan indicated to them crib work, containing more or less stone. The plaintiff's experts, and even its general manager, who had had considerable experience in excavating along the North river, testified that the typical section shown on the plan indicated an earth-filled crib, but all said that, in their experience in excavating crib work along the North river they had always found more or less stone. They explained that, however, by saying that, if a crib was to be sunk in mud, and was intended only to sustain vertical pressure, it was customary to sink timbers in the mud and at some distance from the bottom ...