American Concrete Steel Co. v. Hart

• Citation: 285 F. 322
• Decision Date: 31 October 1922
• Docket Number: 27.
• Parties: AMERICAN CONCRETE STEEL CO. v. HART.
• Court: U.S. Court of Appeals — Second Circuit

285 F. 322

AMERICAN CONCRETE STEEL CO. v. HART.

No. 27.

United States Court of Appeals, Second Circuit.

October 31, 1922

[Copyrighted Material Omitted]

William S. Haskell, of New York City (Albert W. Meisel, of New York City, of counsel), for plaintiff in error.

L. W. &amp A. B. Widdecombe, of New York City (L. W. Widdecombe, of New York City, of counsel), for defendant in error.

Writ of error to a judgment entered by the District Court for the Eastern District of New York, after a trial without a jury in favor of defendant in error against plaintiff in error for $14,663.14. Defendant in error (hereinafter called Hart) brought an action against plaintiff in error (hereinafter called American Co.) to recover $13,181.07 and interest for transactions arising under a contract between the parties to do excavation work in connection with the erection of a building for Louis De Jonge & Co., at Clifton, Staten Island, N.Y. The complaint, as amended at the trial, set forth four causes of action, the second of which was not contested. The first was for the balance due for excavation work; the third was based upon a breach of a provision of the contract providing for damages in case of delay. The fourth was based upon the breach of an implied agreement by American Co. not to hinder nor delay Hart in the prosecution of his work and to give him access for that purpose.

The parties signed and duly filed a written stipulation waiving a jury. The answer of American Co. denied substantially all the material allegations of the complaint and set up a separate defense by way of set-off for work which American Co. claimed to have done for Hart's account.

The District Court found the issues in favor of Hart upon all of the causes of action set forth in the complaint, as amended on the trial, and upon the set-off. While the court did not make formal findings of fact in detail, the opinion fully and carefully discussed the facts and stated the reasons which led the court to its conclusions.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

We have recently had occasion to state that:

'Under law too well settled to require citation, the finding of the court below in an action at law where a jury has been duly waived, has all the force of a verdict. * * * ' United States of America and the City of New York v. George Benedict, as Sole Surviving Trustee, etc., 280 F. 76.

We have also again pointed out that:

'This court, on a writ of error in a civil case, can review only erroneous rulings made by the trial court on questions called to its attention and passed on by it. ' United States of America v. National City Bank of New York, 281 F. 754.

It is, therefore, necessary to state the facts only to the extent desirable to point out the questions of law now involved. The contract took the form of an order from American Co. to Hart agreed to and signed in duplicate by the latter. Under this order, Hart, inter alia, was to--

'furnish all labor, materials, equipment, etc., necessary for all excavation, pumping, and back-filling in the above building in accordance with plans and specifications prepared for same by Valentine & Kissam, architects, as follows: All work to the underside of first floor to be done at 90c. per cu. yd. All other excavating at $1.90 per cu. yd. You to provide necessary dumping place for any of this material that cannot be graded on the owner's property. The order is placed with the understanding that you will start this work immediately and complete same to the entire satisfaction of the architects and owners and in such manner as to cause no delay in the construction of the building. You are also to work in harmony with the contractor for sheet piling and under the direction of our superintendent in charge of the work.

Payments to be made about the 15th day of each month for 85 per cent. of the value of work completed to the last day of the preceding month. Final payment to be made within 30 days after the entire completion of this order to the architect's satisfaction.'

First Cause of Action.-- At the close of Hart's case, American Co. moved to dismiss the first, third, and fourth causes of action on the following grounds: (1) That the plaintiff had not sustained the burden of proof and had not shown performance within a reasonable time. (2) That he had not proved facts sufficient to constitute a cause of action. (3) That plaintiff's evidence showed three months to be a reasonable time for performance, and in the absence of a claim for delay by written notice provided by the contract, plaintiff could not excuse nonperformance within that period. (4) That plaintiff had not shown that the architect's refusal to grant the certificate was unreasonable. A motion of similar effect was renewed at the close of the whole case and denied.

It is now urged as error that the complaint was dismissed because Hart failed to plead or establish that the work was done to the entire satisfaction of the 'owners.' It will be noted that neither this point of pleading nor this lack of proof was called to the attention of the court upon the motions to dismiss. The New York rule is:

'That a motion for a nonsuit or to dismiss the complaint, to be effectual, must specify the defects supposed to exist. * * * The reason of the rule is obvious, as it affords an opportunity to supply * * * proofs where it is possible. ' Quinlan v. Welch, 141 N.Y. 158, 165, 36 N.E. 12, 14.

As restated in United States v. National City Bank, supra, this is also the rule recognized in this court. It is a salutary rule, which tends not only to attain justice between the parties, but to avoid the delay and expense of new trials in respect of matters which might or could have been appropriately dealt with in the trial court, if called to the attention of court and counsel.

But, passing this point, we shall nevertheless consider the questions both of pleading and of proof as to the satisfaction of the owners. The complaint alleged that 'the plaintiff duly performed all the terms of said agreement. * * * ' The contract did not provide by its terms that the satisfaction of the owners should be evidenced by a certificate or writing precedent to payment. On the contrary, neither the payments in the course of the work nor the final payment were conditioned upon any act of the owners. The final payment, which in cases of this kind is so often the subject-matter of controversy, was to be made after the entire completion of the order 'to the architect's' and no one else's 'satisfaction.'

The case is quite different from Weeks v. O'Brien, 141 N.Y. 199, 36 N.E. 185, as was pointed out in Fox v. Cowperthwait, 60 A.D. 528, 69 N.Y.Supp. 912; for in Weeks v. O'Brien the last installment was to be paid 'provided a certificate shall be obtained'-- obviously a condition precedent. Here there was no such proviso. Gearty v. Mayor, 171 N.Y. 61, 63 N.E. 804.

Upon the question of proof, the record shows that there was some evidence as to satisfaction. There was a meeting at the office of De Jonge & Co. in April, 1918, at which, among others, Mr. Albert De Jonge was present, and on that occasion there was no criticism of the work. Under the language of the contract it was not necessary for Hart to prove the satisfaction of the owner. It was for American Co. to prove dissatisfaction, if it could. There was no such testimony adduced, and the finding of the court below must be construed as a finding of fact that the contract was duly performed in this regard, and such finding we have no power to review.

Another ground of attack against the judgment on the first cause of action arises out of that part of the...