Thomas W. Finucane Co. v. Bd. of Educ. of City of Rochester

• Citation: 190 N.Y. 76,82 N.E. 737
• Parties: THOMAS W. FINUCANE CO. v. BOARD OF EDUCATION OF CITY OF ROCHESTER.
• Decision Date: 19 November 1907
• Court: New York Court of Appeals

190 N.Y. 76

82 N.E. 737

THOMAS W. FINUCANE CO.

v.BOARD OF EDUCATION OF CITY OF ROCHESTER.

Court of Appeals of New York.

Nov. 19, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Thomas W. Finucane Company against the board of education of the city of Rochester. From a judgment of the Appellate Division (101 N. Y. Supp. 1121,115 App. Div. 920), modifying a judgment granting insufficient relief and affirming it as so modified, plaintiff appeals. Reversed, and new trial granted conditionally.

James M. E. O'Grady, for appellant.

W. Webb (John M. Stull, of counsel), for respondent.

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 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 planing and matching machine there before being shipped here for use, and that, on account of such change, the expense to the plaintiff of such floors was reduced by $7 per 1,000 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 on this account with interest thereon from June 1, 1903, to this date which amounts to $66.34.’

The facts stated in such finding are wholly insufficient to sustain the conclusion of law therein. The other findings negative any claim that the plaintiff failed to perform its contract so far as it relates to the floors. The counterclaim is not based upon findings that the floors were not of the material required by the specifications, or that they were not planed, matched, kiln dried, laid, and finished as therein provided. The fact that the specifications, so far as they relate to the place where the flooring should be kiln dried, were waived by the defendant, and that the plaintiff was allowed to have the material kiln dried in the southern states where it was purchased, is not sufficient on which to charge the plaintiff with the amount saved by it through procuring a lower price for the kiln dried flooring in such southern states. The intention of the plaintiff in requesting the defendant to waive the provision of the specifications in regard to the place where the flooring should be kiln dried was doubtless for the express purpose of enabling it to make a better bargain for itself in purchasing such kiln dried flooring. The consent to have the flooring kiln dried in the southern states was unconditional. If, at the time the flooring was laid, it was kiln dried as contemplated by the specifications, and the completed floors are in all respects according to the specifications, there is not in the findings any basis for the counterclaim against the plaintiff. If the defendant claimed that the flooring absorbed moisture in being transferred to the school building, or in any other way the flooring became or was injured, or that the completed floors were inferior to the floors required by the specifications, it should have shown such injuries or inferiority upon the trial and obtained a finding to that effect by the referee.

The eighteenth paragraph of the complaint is as follows: ‘Whatever damage or expense the contractor may suffer or be put to by reason of the owners not delivering the building on August 1st shall be considered and paid for by the owner as an extra, and the character, amount, and valuation of such extra shall be audited by the architect. In case such character, amount, or valuation is not agreed to, the same shall be referred to three arbitrators to be...