Clark v. Mayor of New-York , 3 Barb. 288 ( 1848 )

HarRis, J.

It is now judicially settled that the water commissioners were the agents of the defendants. (Bailey v. The Mayor, &c. of the city of New- York, 3 Hill, 531. S. C. in the court for the correction of errors, 2 Denio, 433. Appleton v. The Water Commissioners, 2 Hill, 432.) So far as the commissioners act within the scope of their powers, the defendants are liable, for their acts. The contract in question was signed by Stephen Allen, chairman of the commissioners on their behalf. It may have been imperfectly executed, but it was subsequently recognized and adopted by the defendants. They paid the plaintiffs upwards of $400,000 for work done under the contract. The plaintiffs, on the one part, and the defendants on the other, are therefore to be regarded as' the contracting parties. The suit was properly brought against the defendants, and in the proper form of action. (Randall v. Van Vechten, 19 John. 60. Dubois v. Delaware & Hudson Canal Co. 4 Wend. 288.)

The next, and perhaps the most important, inquiry arising in this case is, whether the contract was rescinded by the defendants. The plaintiffs contend, and the referees have found, that it was rescinded. The defendants insist, on the other hand, that in stopping the plaintiffs’ work they merely exercised the right reserved in the contract to change the form and dimensions of the work. If the contract was rescinded by the defendants, then the plaintiffs are entitled to recover, under the common counts, compensation for the work they have done. The amount of such compensation is to be ascertained by a reference to the prices which the parties themselves have fixed for the work, in their contract. For that purpose, if the contract was rescinded, the contract itself was properly received in evidence by the referees. Even if not conclusive, as to the amount to be allowed the plaintiffs for the work actually done by them, it was • certainly competent to show what prices the parties themselves had fixed upon as a compensation for the work. Was, then, the contract rescinded ? I agree with the referees in their conclusion- that it was. Although the defendants had, in the contract, reserved to themselves the right to make such alterations “ in the form, dimensions or materials of the work as might be directed in writing by the commissioners or their engineer,” it cannot be contended, I think, that it was intended by this provision to authorize the defendants, whenever they should think fit, to arrest the work, under color of changing the form and dimensions of the work. No such construction of the contract seems to have been thought of when the plaintiffs were stopped in the execution of their contract. No “ directions in writing” for changing the form or dimensions of the work were given to the plaintiffs, either by the commissioners or the engineer. On the contrary, the engineer swears that the plaintiffs were “ ready and willing to complete the job on their part, but that he stopped them by direction of the defendants.” Besides, I think, no fair construction of the clause of the contract relied on by the defendants, would justify them in wholly arresting the plaintiffs in the performance of the contract, under the pretence of changing the form and dimensions of the work. The parties could never have intended any such thing, nor do I think the terms of the contract susceptible of such a construction. The defendants, therefore, when the work was entirely stopped by their engineer under their direction, must be deemed to have rescinded the contract, and the plaintiffs were right in bringing their action to recover upon the quantum meruit for the work they had done under the contract.

The next question to be considered is whether the referees have erred in the basis upon which they have determined the value of the work done by the plaintiffs. They have assumed that the entire rock excavation to complete the work according to the specification annexed to the contract was worth the contract price of one dollar per cubic yard. They have also found that it was worth, to excavate the rock which had beep removed when the work was stopped, the sum of $46,800 over and above the price of one dollar per yard ; and that it would be worth, to excavate the rock remaining when the work was stopped, less than one dollar per yard by the like sum of $46,800. So that assuming the whole work to be worth the price stipulated in the contract, and comparing the cost of the rock excavated with what it would cost to complete the excavation, the value of the work done exceeded the amount which the defendants had allowed for the work, to the amount stated. I cannot see that the referees have violated any rule of law in adopting this principle as the basis of their report. On the other hand, I think they have adopted the only correct mode of ascertaining the amount which the plaintiffs were entitled to recover. If a portion of the excavation was worth $4 per yard, and another portion was worth only thirty-five cents per yard, and the average of the whole would be worth one dollar per yard, and if, after the plaintiffs had excavated that portion which was worth more than the average price, and before that which was worth less had been excavated, the work was stopped by the defendants, I see no' reason why the plaintiffs should not recover the comparative value of the work done by them. To insist that, because the price is fixed in the contract at the same sum per cubic yard for all the rock excavation, no regard is to be had to the relative cost of the work done and that to be done, would be manifestly unjust. According to the facts, as found by the referees, the plaintiffs have lost upon that portion of their contract which they have executed, estimating it at the contract price of one dollar per cubic yard, the sum of $46,800; and they would have made a profit upon that portion of their contract which remained to be executed when the work was suspended, equal to the amount of their loss upon the work done. The mere statement of the facts, as they are found to exist, is sufficient to justify the referees in adopting the rule upon which they have proceeded.

But it is insisted by the counsel for the defendants, that the “final account” made by the engineer is conclusive upon the plaintiffs as to the quantity of work done, and also as to the compensation to be paid therefor. It is true that the provisions of the contract in this respect are very broad, and so long as the contract remained unrescinded, perhaps the plaintiffs could not have withdrawn from the decision of the engineer any question arising under the contract. They had agreed that “ the engineer should in all cases determine the amount or quantity of the several kinds of work which were to be paid for under the contract, and the amount of compensation at the rates therein provided for, and also that he should in all cases decide every question which could or might arise relating to the execution of the contract on the part of the contractors; and his estimate and decision should be final and conclusive.” Thus it will be seen that so long as the contract remained in force, every question arising under it was to be determined by the engineer. From his decision there was to be no appeal. If, therefore, the contract had not been rescinded, and the plaintiffs had brought their action upon the contract, I tbink they would have been bound by the final estimate and return made by the engineer. But the contract having been rescinded by the act of the defendants, they are not entitled to the benefit of any stipulation it contains, for the purpose of depriving the plaintiffs of a just compensation for the work done by them before it was rescinded. The decisions of the engineer were no longer binding upon the plaintiffs. They became entitled to recover of the defendants the value of the labor they had expended upon the work, and it was only important to refer to the contract for the purpose of ascertaining what prices the parties had themselves mutually fixed upon the work. It, belonged exclusively to the referees, to determine from the evidence before them, uncontrolled by any estimate or decision of the engineer, what compensation the plaintiffs were entitled to recover for the work they had done. (Delaware and Hudson Canal Company v. Dubois, 15 Wend. 87.)

The action having therefore been properly brought by the plaintiffs upon a quantum moruit, to recover for the value of their work, and no error haying been committed by the referees in the principles upon which they have proceeded in estimating the amount due to the plaintiffs, their report should be confirmed, unless they have erred in the admission or rejection of evidence. The first evidence objected to by the defendants was the contract itself. The ground of objection seems to have been that it was not in fact a contract between the plaintiffs and defendants, but between the plaintiffs and the water commissioners, and therefore that it was inadmissible as evidence against the defendants. Upon this point it is enough to say that though the contract may have been imperfectly executed, yet the defendants have recognized and acted upon it as their contract, and so far as it has been executed, they are bound by its provisions and terms. It was therefore properly admitted in evidence for the purpose for which it was offered. Several objections were made to questions put to witnesses examined before the referees. All these objections were founded upon the assumption, by the counsel for the defendants, that the return and decision of the engineer was made by the contract conclusive upon the parties. But we have already seen that this position cannot be sustained; and the referees therefore were right in overruling these objections.

. The only other objections urged by the counsel for the defendants were to the extracts from the report of the engineer to the water commissioners and the report of the water commissioners to the defendants. In these reports it is stated that “ by stopping the rock excavation the defendants had saved $75,000.” I think this evidence was competent, as tending to establish two positions necessary to be proved to entitle the plaintiffs to recover; first, that the defendants recognized and ratified the contract as their own ; and secondly, that the contract was in fact rescinded by their agents, with their knowledge and approbation.

I am of opinion therefore that the report of the referees ought to be confirmed.

Watson, J. concurred.