Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, L. HAND, and MACK, Circuit Judges.
Both parties to this action appeal from a judgment entered by plaintiff for breach of contract. The parties contracted for building a subway railroad in the city of New York. Two items are brought into question here on the plaintiff's appeal, and an item of interest, allowed on the jury's award, is complained of by the defendant. After the judgment was entered, the city of New York stipulated to and did pay the award, except the interest item, and it was agreed that the payment and its acceptance would be without prejudice to the defendant's right to a review of the ruling allowing interest, and also the plaintiff's right to review rulings of the trial judge disallowing two items of plaintiff's claims.
The first of these was a claim for payment for concrete laid under permanent street surface and curbs, in the amount of $14,325.20; the second was for quantities of excavation at contract schedule unit prices, for which the claim is made in addition to the quantities allowed in the final certificate. The amount of this claim is $209,984.93. Interest was awarded in the court below in view of section 480 of the Civil Practice Act of the state of New York, as amended by chapter 623 of the Laws of 1927. It provides:
"In every action now pending or hereafter brought wherein any sum of money shall be awarded by verdict, report or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, express or implied, other than a contract to marry, interest shall be recovered upon the principal sum whether theretofore liquidated or unliquidated and shall be added to and be a part of the total sum awarded."
The contract was entered into July 14, 1914, and was to be performed in 30 months. The contract work was completed in January, 1919. At the trial, it was found that the plaintiff was delayed unduly by the defendant. The amount of damages found by the jury, as resulting from this delay, has been acquiesced in by the defendant in the payment thereof.
The first item of plaintiff's appeal is based on the claim of payment for concrete base laid under the asphalt covering in repaving or restoring the streets after the subway construction work had been finished. Payments were made, under the contract, on a unit basis. Item 30 covered the item prices for restoration of street surface and reads:
"For street surface restored as follows: * * *
"(e) For repavement of roadways between curb lines with asphalt pavement, the sum of $2.50 per square yard.
"(f) For repavement of roadways between curb lines with granite block pavement, the sum of $1.50 per square yard.
"(g) For repavement of roadways between curb lines with asphalt block pavement, the sum of $2.50 per square yard."
Item 6 of the contract, providing for payment for concrte masonry, provides for payment of concrete masonry on the basis of $7 per cubic yard. The argument of the plaintiff is that it should be paid for having laid a concrete base under the asphalt on the basis of item 6. Article 10 of the contract provides that it would be necessary to take up and relay the sidewalks and roadway pavements or other surface material, and further that the contractor must "do all such additional and incidental work as may be necessary for * * * the reconstruction and restoration of the street pavements and other surfaces, and of all surface, subsurface and * * * other structures which may have been directly or indirectly affected by, disturbed or injured by the contractor in the progress of the work of construction, to as useful, safe, durable and good condition as existed before construction was begun. All of such work of every description * * * is part of the work which is included in this contract and which the contractor agrees to perform for the prices herein agreed upon." When the plaintiff laid the concrete and rested thereon either asphalt or granite rock, it but restored the surface "to a condition similar to and equally as good as that existing previous to the commencement of construction," and section 423 of the contract provides for payment for surface restored in the prices stipulated under schedule item 30. It is necessary, in restoring pavement, to lay the concrete base, and the parties stipulated that payment therefor was to be made under item 30, and not under item 6.
It is conceded that the plaintiff has been fully paid under item 30, and, since that item of the contract between the parties fully expresses the agreement as to payment for the work, the objection to the introduction of evidence, tending to show it to be the custom that in paving and repaving with asphalt pavement in other contracts there is specified a price per square yard for the ...