Beattie v. New York & L.I. Const. Co.

• Decision Date: 09 November 1909
• Citation: 196 N.Y. 346,89 N.E. 831
• Parties: BEATTIE et al. v. NEW YORK & L. I. CONST. CO.
• Court: New York Court of Appeals Court of Appeals

196 N.Y. 346

89 N.E. 831

BEATTIE et al.

v.NEW YORK & L. I. CONST. CO.

Court of Appeals of New York.

Nov. 9, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John Beattie and another, as executors and trustees of John Beattie, deceased, against the New York & Long Island Construction Company. From a judgment of the Appellate Division (127 App. Div. 923,111 N. Y. Supp. 1109), affirming a judgment for plaintiffs, defendant appeals. Modified and affirmed.

On the 7th day of December, 1894, John Beattie, the plaintiffs' testator, and Lynde Harrison of New Haven, Conn., were the owners of granite quarries situate at Leetes Island upon Long Island Sound in the state of Connecticut. On that day they entered into a contract with the defendant, partly evidenced by a letter which reads as follows:

‘New Haven, Conn., December 7, 1894.

‘Mr. C. M. Jacobs, C. E.:

‘Dear Sir.-Mr. John Beattie and myself are now engaged in preparing for the New York and Long Island Bridge at Blackwell's Island, about 5,000 yards of granite for the lower courses of the piers. These are to be furnished at 10.50 per yard under the agreement made with yourself and Mr. Corbin a few weeks ago.

‘We are almost ready to begin details for the remainder of the granite required under the specifications furnished for the piers required for the Bridge, on the terms given you by Mr. Northrup, acting as our agent; 10.50 per yard for all stone required, and a charge of 50 cents a foot extra for the axed work that may be ordered; the contract to be made with the N. Y. & L. I. Construction Company, and signed as soon as prepared. In the meantime we will go on with the work; it being understood that we have agreed to furnish the 5,000 yards named at the very low price named, in consideration of our having the contract with the Construction Co. for the entire granite required for the piers. It is understood that if for any reason the piers should not be constructed, we are only paid for granite actually delivered and cost of balance quarried and cut.

‘[Signed] Lynde Harrison,

‘For Myself and as Att'y for John Beattie.

‘O. K.

‘A. C.’

The ‘C. M. Jacobs, C. E.,’ to whom it was addressed, was a civil engineer employed by the defendant to prepare plans and specifications for a bridge across the East river at Blackwell's Island, and to superintend its construction. The initials ‘A. C.’ at the lower left-hand corner of this letter are the initials of Austin Corbin, who was then the president of the defendant. As appears from this letter, the writers thereof were then engaged in quarrying and cutting for the defendant about 5,000 yards of granite to be used in the lower courses of the piers, which were to form the substructure of said bridge. The price for this stone was fixed at $10.50 per yard, upon the understanding that the writers of the letter were to have the contract with the defendant for furnishing all the granite to be used in the construction of the piers. The record discloses that at that early day it was anticipated that contingencies might arise which would necessitate the abandonment of the work; and to provide against them there was inserted in the contract the provision that, if for any reason the piers should not be constructed, the defendant should only pay for granite actually delivered ‘and cost of balance quarried and cut.’ After the contract had been entered into, and before the commencement of work upon the piers, Harrison assigned his interest in the contract to Beattie, the plaintiffs' testator. Later still, and in 1899, Beattie died, leaving a will in which the plaintiffs were named as executors. For convenience we will refer to the plaintiffs as parties to the contract with the defendant. The lower courses for the piers embraced in the first 5,000 yards to be furnished were to be of unusual size and weight, and the plaintiffs found it necessary to open two new quarries to procure them. The defendant, through Mr. Jacobs, its engineer, visited the quarries before the contract was made, and fully understood that in view of the expense and labor involved in the opening of these quarries the price of $10.50 per yard was much less than the cost of getting out the first 5,000 yards of granite, and that it was an average price based upon the prospect that all the granite required for the piers, much of which would be of smaller dimensions and more easily quarried, would be taken from these quarries. From December 7, 1894, when the contract was made, until October 25, 1895, when the work was abandoned by the defendant, the plaintiffs continued the work of quarrying and cutting granite for the piers.

During the progress of the work the plaintiffs had delivered granite which was set in piers 3 and 4, for which they had received payments in various installments amounting to the sum of $32,840.72, the last payment being made February 23, 1897. When this last payment was made, the defendant took from the plaintiffs a receipt which covered only the stone actually set in the piers, with the exception of $566.39, which was for certain axed work, pene hammered work, and for allowances under arbitrary measurements contained in the specifications for the spaces occupied by the mortar between the courses of stone. No work was ever done upon pier one. A portion of the foundation work on pier two was done by the defendant, but it never progressed far enough to permit the laying of granite. In October, 1895, the plaintiffs had prepared and delivered on scows alongside the piers on Blackwell's Island a quantity of stone which included about 200 yards of backing which was quarried and cut expressly for these piers, and which had been inspected and accepted by the defendant at the quarries. This the defendant refused to receive, and the plaintiffs were compelled to reship it to Leetes Island and there unload it.

On October 25, 1895, when the contract was abandoned by the defendant, the plaintiffs had also quarried and cut in execution of this contract 1,295.17 cubic yards of stone for the piers, of which 549.78 yards were face stone, and 745.39 cubic yards were backing stone. The greater part of this had been fully cut and ready for shipment. The plaintiffs, when advised of the defendant's abandonment of the work, caused to be measured all of the stone quarried and cut but not delivered, and then stopped further work under the contract. After the work was thus stopped, the plaintiffs demanded of the defendant payment of the expense incurred in the quarrying and cutting of stone not delivered. In March, 1897, the defendant sent its engineer to the quarries of the plaintiffs, who was then furnished with a list of the measurements made. The engineer examined the stone, but only marked as accepted about 537 yards. After the abandonment of the work by the defendant in 1895, the plaintiffs sold 356 yards of the face stone for use in the construction of a bridge in the city of Hartford, Conn., for which they received the gross price of $5,314.40. They had incurred expenses in connection therewith for recutting, freight, and commissions to the amount of $2,605.49, leaving a net profit of $2,708.91. The cost to the plaintiffs for quarrying and cutting the 1,295.17 yards of stone not delivered was proved to have been $16.80 per cubic yard, making a total of $21,758.85, and this was predicated upon the fact that it was cut for the heavy lower courses, which were much more expensive than the remaining courses, and upon the cost of opening new quarries. The whole amount of stone thus quarried and cut, but not delivered, with the exception of 356 yards sold for the construction of the bridge at Hartford, remains in the quarry of the...