190 N.Y. 76, Thomas W. Finucane Co. v. Board of Education of City of Rochester

Citation:190 N.Y. 76
Party Name:THOMAS W. FINUCANE COMPANY, Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF ROCHESTER, Respondent.
Case Date:November 19, 1907
Court:New York Court of Appeals

Page 76

190 N.Y. 76

THOMAS W. FINUCANE COMPANY, Appellant,

v.

THE BOARD OF EDUCATION OF THE CITY OF ROCHESTER, Respondent.

New York Court of Appeal

November 19, 1907

Argued October 31, 1907.

Page 77

COUNSEL

James M. E. O'Grady for appellant. The plaintiff was entirely within its rights in purchasing material for the flooring in the south as long as it conformed to the specifications, and as long as it was not forbidden so to do by the specifications. To say that the defendant can take advantage of plaintiff's superior ability in the purchase of its materials and be entitled to a reduction is unfair and unjust and illegal. (Thomas v. Stewart, 132 N.Y. 580; Schnaier v. Nathan, 49 A.D. 298; Langley v. Rouss, 85 A.D. 29.) The trial court

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erred in excluding evidence of a conversation between plaintiff's president and the president of the defendant alleged to have taken place at the time of the signing of the contract. (N.Y. & N. H. S. Co. v. Andrews, 38 A.D. 56.)The evidence sought to be introduced by the plaintiff of damages arising under the contract was admissible. (Bates v. Holbrook, 89 A.D. 548; Schile v. Brokhahus, 80 N.Y. 614; Snow v. Pulitzer, 142 N.Y. 263; Wakeman v. W. & W. Mfg. Co., 101 N.Y. 205.) The objection to any affirmative evidence being given by any witness on the part of the defendant on the ground that before they could maintain their case the defendants must show that they had complied with the terms of the contract as to arbitration as a condition precedent to any defense on their part in this action was improperly overruled. (Smith v. Alker, 102 N.Y. 87; Heidlinger v. Onward, 90 N.Y.S. 115; Grant v. Pratt, 97 N.Y.S. 29.)

William W. Webb, Corporation Counsel (James M. Stull of counsel), for respondent. The credits allowed to the plaintiff by the referee for omitted work and changes made were warranted in law and justified by the evidence. (2 Am. & Eng. Ency. of Law [2d ed.], 586; Keeney v. H. Ins. Co., 71 N.Y. 396; Pratt v. N.Y. C. Ins. Co., 55 N.Y. 505; Williams v. Shields, 30 N.Y. S. R. 556.) Evidence of plaintiff's alleged loss of profits was properly excluded, and in any event no harm was done plaintiff by such exclusion. (Donald v. Gearhardt, 42 A.D. 270.) The exclusion of the conversation had between the president of the plaintiff and the president of the defendant at the time of the signing of the contract was proper. (Kirkpatrick v. N.Y. C. R. R. Co., 79 N.Y. 240; Mapes v. Snyder, 2 T. & C. 318; 59 N.Y. 450; Ackersloot v. S. A. Ry. Co., 30 N.Y. S. R. 146; Daniels v. Paterson, 3 N.Y. 47.) The arbitration stipulations contained in clause 18 of the contract were against public policy and void, but even if they had been valid defendant's failure to comply with plaintiff's demand for arbitration of its

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claims thereunder did not preclude defendant from a determination of such claims on their merits in a court of law. (2 Am. & Eng. Ency. of Law [2d ed.], 570.)

CHASE, J.

The plaintiff entered into a contract with the defendant to erect the 'East High School' in the city of Rochester, not including excavations and foundations therefor. After (as claimed by the plaintiff) the contract had been performed and the building completed a controversy arose between the parties as to the amount to be paid to the plaintiff in settlement of its demands. The plaintiff brought this action alleging a balance due it of $18, 500 on the stipulated contract price; $3, 072.74 for certain alterations in the work and $30, 739 damages under paragraph 18 of the contract, which we will herein further mention.

The defendant, answering the plaintiff's complaint, denied many of the material allegations thereof, and interposed various counterclaims. The issues were referred to a referee, and he made findings of fact and conclusions of law upon which he directed judgment in favor of the plaintiff for $25, 099.38 and judgment was entered thereon accordingly. The plaintiff appealed therefrom to the Appellate Division of the Supreme Court where the judgment was modified by adding a small amount in accordance with a stipulation of the respondent and as so modified the judgment was unanimously affirmed. An appeal is taken to this court, but only questions of law can be considered.

The tenth finding of fact is as follows:

'That the specifications required that all finished floors should be thoroughly kiln dried and taken from the kiln directly to the machine and then direct to the building, and only as fast as wanted for laying; that at the request of the plaintiff this provision of the specifications was waived so as to allow the plaintiff to have the flooring kiln dried in the southern states where it was purchased and put through the planning and matching machine there before being shipped here for use, and that on account of such change the expense

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to the plaintiff of such floors was reduced by $7.00 per thousand feet and 101, 000 feet of flooring was used in said building and that the defendant is entitled to a counterclaim against the plaintiff or to a deduction from the contract price of $707.00 on this account with interest thereon from June 1st, 1903, to this date which amounts to $66.34.'

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