MOTION by the plaintiff, the Cranford Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term in May, 1909.
Alton B. Parker, for the plaintiff.
Loyal Leale, for the defendant.
In February, 1907, the city of New York, by the board of water supply, entered into a contract with plaintiff for the sinking
of two test or exploration shafts on either side of the Hudson river for the purpose of determining the elevation at which solid rock might be found, and the suitability of this rock for containing the Catskill aqueduct tunnel. The work to be done and the rate of payment for each item of work was specifically defined by the contract. Inasmuch as speed in completion was deemed to be of great importance, each bidder was requested to name in his proposal the speed which he was willing to guarantee, and a bonus of $400 per day was agreed to be paid to the contractor in case the work should be completed earlier than the bid time, and in case guaranteed progress was not made, $100 per day, not including the first twenty-five days, it was stipulated should be exacted as liquidated damages.
As to payments, the contract provided that the engineer should, from time to time, as the work progressed, but not oftener than once in each month, make in writing an estimate of the work done and the materials furnished since the last preceding estimate, and that the city should pay to the contractor ninety-five per cent of each estimate, a final adjustment of accounts and a final estimate to be made when the work should be completed. No time was specified in the contract within which the city should pay the ninety-five per cent of each monthly estimate after the same should have been made and signed by the engineer.
The plaintiff entered upon the performance of the contract and received seven monthly estimates from the engineer, the first being dated May 18, 1907, and the last November 13, 1907. In each month the engineer made and signed the estimate within a few days after the tenth of the month, and no complaint is made of any delay on this score. The estimates for May and June were paid on September 17, 1907, and those for July and August were paid on September 26, 1907. The evidence recalls the fact, which has passed into history, that the autumn of 1907 was a period of severe financial stringency, when money was scarce and difficult to be had even by the most solvent, and it is, perhaps, for this reason that the city was dilatory in paying the September, October and November estimates. At all events it had not paid them by December 4, 1907, on which date plaintiff, by letter, notified the board of water supply that
unless the three last-mentioned estimates, aggregating about $25,000, were paid within three days from date, that is to say on or before December 7, 1907, it would discontinue the work. The amount of the estimates was not paid within the time specified, and on December 9, 1907, plaintiff did discontinue work, and so notified the board of water supply on December twelfth.
It appears in evidence that plaintiff had made serious mistakes in estimating upon the work to be done, and the rate of progress which it could make, so that, as was testified by one of its officers, they were glad to get out of the contract.
The plaintiff now sues, as upon a quantum meruit, for the fair value of all the work done by it, including the cost of its plant, less the sums which it was paid, at contract rates, under the first four monthly estimates. In consequence of its erroneous estimate of the cost of doing the work, it now ...