Appeal from the United States District Court for the Northern District of New York.
Present: HON. WILLIAM H. TIMBERS, HON. THOMAS J. MESKILL Circuit Judges, HON. LEE P. GAGLIARDI United States District Judge Sitting by Designation
This cause came on to be heard on the transcript of record from the United States Court for the Northern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed on the opinion of Judge Brieant, sitting by designation, dated April 24, 1978. We hold that his findings of fact are not clearly erroneous and we agree with his conclusions of law.
Appellants contend that there was no breach of contract and base their argument on the schematic diagram which was incorporated by reference in the contract. Appellants argue that the district court erred in not accepting the dimensions specified on the diagram as conclusive and in relying on expert testimony to determine the standard size of an American car around 1971. As the district court found, however, the diagram was merely a schematic and not a final plan. Indeed, at the contract closing Hirschfeld already knew that the original schematic had been superseded by another one which made the original no longer viable. The district court determined that the schematic referred to does not represent the garage as finally completed and that "it is inadequate as a source of information from which a reasonable person could deduce the actual capacity of the garage." District Court Opinion at 82a.
Based on this determination, the district court concluded that an issue of fact existed as to the actual size of cars and the actual capital of the garage. Under these circumstances, consideration of the testimony of experts was entirely proper and it cannot be said that the district court's findings based on this expert testimony was clearly erroneous. Accordingly, we reject Hirschfeld's claim that there was no breach of contract.
With regard to appellants' claim that Apcoa's failure to comply with paragraph 2 of the contract constitutes a waiver of Apcoa's right to rescind, we hold that the district court correctly concluded that there was no intentional relinquishment of known rights. First, the certificate of the architest which was a condition upon which Apcoa's duty to inspect was based was never presented to Apcoa by Hirschfeld. No detailed plans were ever submitted by Hirschfeld in accordance with the contract. The garage was never completed in accordance with the schematic that was actually presented to Apcoa. Accordingly, the seven day time limit never started to run in which Apcoa was to give notice of any deficiency.
While appellants argue that Apcoa, by taking possession without insisting on the architect's certificate, waived its right to claim the lack of the certificate as the basis of its failure to inspect, it should be remembered that Hirschfeld requested Apcoa to take possession early. Not only did Apcoa take possession early as a favor to Hirschfeld, but Apcoa had no reason to suspect that there were an insufficient number of spaces. Indeed, Hirschfeld's own actions in failing to supply the certificate, in failing to provide the stripings which would have facilitated counting the spaces, and in concealing the schematic which would have revealed that the number of spaces was less than that contracted for -- all contributed to Apcoa's failure to discover the deficiency. As the district court found, Hirschfeld's failure to show Apcoa the other schematic "[was] so material as to constitute a separate ground for termination of the contract." District Court Opinion at 75a.