Appeal from the District Court of the United States for the Eastern District of New York.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This is a suit upon a contract awarded to the appellant to convert one of the city's coal-burning ferryboats into an oil burner. The libel set forth two causes of action, the first for the unpaid balance of the contract price and the second for $2,763 and interest for extra work ordered by the city. The two causes of action were severed. This appeal relates only to the second, which was dismissed on the ground that the alleged extra work was required by the contract.
The contract price was $102,000. For this sum the appellant was to supply all necessary labor materials "for furnishing and installing oil-burner equipment and alterations, repairs and renewals in connection therwith." During the progress of the work the contractor removed the coal from the bunkers and laid open to view the reverse bars in the area of its work. They were found to be badly corroded and were condemned by the United States Local Steamboat Inspectors. The contractor submitted an estimate of the cost for renewing the condemned reverse bars "in both boiler rooms in way of boiler foundations and fuel oil tank foundations as directed by the Ciry Inspector." The city replied that the work was required by the terms of the contract to be done at the contractor's expense, and directed the appellant to proceed with it. Without a settlement of the dispute and in order not to incur the penalty provided for delay in performance of the contract, the appellant renewed the condemned reverse bars. It is conceded that the amount sued for is the proper amount, if the appellant is entitled to any recovery.
The issue is a narrow one. It involves a construction of the contract and specifications. Paragraph 4 of Item 1 of the specifications provides: "Any parts of the hull, boilers, fittings, fixtures, etc., ets., disturbed or removed in order to carry out the work which are damaged by the Contractor or are otherwise found to be unfit for further use shall be renewed by the Contractor as required by the Department and at the Contractor's expense." Reverse bars are angle irons curved in the reverse arc to the frames and fastened with one flat side against one sider of the projecting flainge of the frames. They strenthen the full and, as a witness testified, are part of it.
The appellant contends that city impliedly warranted tht it would supply a sound bull in which the conversion could take place; that the district court's construction of the quoted clause in the same as though it read "any parts of the hull found unfit" shall be renewed at the contractor's expense, and that such a construction is most unreasonable as it would require the contractor to make any needed reqpirs, however disconnected with converting the vessel into an oil-burner. We agree that the contract never meant that; it was not for a general reconditioning but was limited to the installation of oil-burner equipment and "alterations, repairs and renewals in connection therewith". But the testimony of witness Ross, to which strangely enough neither brief refers, established that the renewed reverse bars support the foundations of the boilers and fuel oil tank which the contractor installed. His testimony was as follows:
"Q. Do you remember the incident of those bars being condemned? A. Yes, sir.
"Q. When was that condemnation with respect to the installation work, before or after? A. that was after we moved the coal from the coal bunkers.
"Q. Before you put in uour own work? A. Yes.
"Q. Were all those bars condemned and replaced in the area of your work? A. Yes, sir.
"Q. All were in that area? A. Yes.
"Q. Tell us what the conditio was there. A.They were all very bad, all corroded. They were corroded on the reverse bars.
Q. Isn't it true that the supporting members of the foundations that you put in were to be fastened to the frames and not the reverse bars? A. We had to fasten them to the frame and reverse bars, that is, on the tank foundations, but on the boiler ...