Bintz v. City of Hornell

• Decision Date: 07 March 1945
• Citation: 268 A.D. 742,53 N.Y.S.2d 803
• Parties: WESLEY BINTZ, Appellant-Respondent, v. CITY OF HORNELL, Respondent-Appellant.
• Court: New York Supreme Court

268 A.D. 742

53 N.Y.S.2d 803

WESLEY BINTZ, Appellant-Respondent, v. CITY OF HORNELL, Respondent-Appellant.

Supreme Court of New York, Fourth Department.

March 7, 1945

[Copyrighted Material Omitted]

CROSS APPEALS from a judgment of the Supreme Court, in favor of plaintiff, entered August 9, 1944, in Steuben County, upon a decision of the court at a Trial Term (WHEELER, J.). Plaintiff appeals from so much of said judgment as limits his recovery to the sum of $2,540.45, with interest from November 5, 1939, and the defendant appeals from the whole of said judgment.

COUNSEL

W Earle Costello for appellant-respondent.

Albert E. Hollis for respondent-appellant.

DOWLING, J.

On August 29, 1938, the plaintiff and 'Ernest G. Stewart Pres. D. P. Works, City of Hornell, N.Y. ' entered into an agreement whereby the plaintiff undertook to deliver plans and specifications for the installation of a Bintz Patented Swimming Pool, Patent No. 1,572,465, within fourteen days. The plaintiff also agreed to fill out forms for the procuring of a Federal grant to be used 'in the building and equipping of this project.' The agreement provided that the 'owner', hereinafter referred to as the City, was to receive and open bids for the construction and equipping of the pool not later than days after receipt of the plans and specifications. The plaintiff agreed to give general supervision during the construction and equipping of the pool. Mr. Stewart agreed to return all the plans and specifications, save one copy, or pay to the plaintiff $100 per set for those not returned. Mr. Stewart agreed that the plaintiff could place a bronze plate on the finished structure bearing such an inscription as he desired as was his custom on the installation of Bintz Patented Swimming Pools. For his services, Mr. Stewart agreed to pay to the plaintiff 6% on the total construction and equipment costs and 'for permanent license to operate a Bintz Patented Pool', 9% on the total construction and equipment costs. Two hundred fifty dollars was payable on the signing of the agreement. The plaintiff also agreed to have the plans and specifications approved by the New York State Board of Health. Except for the $250, the moneys were payable in installments upon moneys becoming available to build 'a swimming pool'. The plaintiff delivered to the City four sets of the plans and specifications.

Under a resolution of the Common Council adopted August 26, 1938, the Department of Public Works was authorized to empower the plaintiff to prepare the necessary papers and to make an application to the P.W.A. for a grant for the construction of a 'Bintz pat. pool in Hornell, N.Y. ' The plaintiff prepared the necessary papers and application was made to the P.W.A. for a Federal grant. Copies of the plans and specifications of a Bintz Patented Swimming Pool accompanied the application. The plaintiff also procured the consent of the New York State Board of Health for the construction of a Bintz Patented Swimming Pool in Hornell.

On September 16, 1938, the Common Council adopted a resolution which provided, in part:

'2. That a Bintz Patent Swimming Pool be constructed at Maple City Park in said City, and there is hereby appropriated to pay the cost thereof the sum of not exceeding $28,000, and in addition thereto, the amount of the grant if and when made from the United States of America.

'3. That the estimated cost of said improvement is $50,435.40, and that the probable life of said improvement is fifteen years.'

On September 27, 1938, the Common Council adopted a resolution submitting the following proposition to the voters: 'Shall a Bintz Patent Swimming Pool be constructed at Maple City Park as a Public Works Administration project, if a Grant Agreement is entered into with the United States of America, and shall bonds of said City be issued in the amount of not exceeding $28,000.00 to pay the portion of the cost of said improvement to be borne by said City'.

The proposition was duly submitted to the resident taxpayers of Hornell and was defeated by a vote of three to two. The P.W.A. disapproved the proposed Bintz Patented Pool as a Federal project. The City returned one set of the plans and two sets of the specifications to the plaintiff.

Agitation for the construction of a swimming pool persisted in Hornell. The Common Council adopted a resolution for a referendum. The resident taxpayers approved and bonds in the amount of $35,000 were issued as of July 1, 1939, to pay construction costs. The City, without any assistance from the plaintiff, and without using the plaintiff's plans and specifications, constructed a sunken swimming pool in one of its parks at a cost of $35,219.25.

Upon the rejection of the proposition to build a Bintz Patented Swimming Pool by the taxpayers of Hornell, the City notified the plaintiff of the result. On November 7, 1938, the plaintiff wrote to the City saying, in substance, that his estimate of the cost of the pool was 'purposely from 5% to 10% high' and that his contract required the City to pay him when moneys became available to build a swimming pool, not a Bintz swimming pool. This was the first time the plaintiff made such claim.

On August 20, 1942, the plaintiff presented a claim based upon his agreement with a notice of intention to sue. The claim was for 15% of $50,000 or of $50,435.40, the estimated cost of the Bintz Patented Swimming Pool, plus $300 for the three sets of plans and specifications not returned, less $250 paid, amounting to $7,315.31, or 15% of the actual cost of the pool as constructed, plus $300 for the three sets of plans and specifications not returned, less $250 already paid. The City disallowed the claim and this action followed.

The action is to recover damages for breach of the agreement of August 29, 1938. The plaintiff demanded judgment for $7,315.31, based on allegations similar to those contained in his claim as above set forth. The City answered admitting the making of the agreement of August 29, 1938, and that the plaintiff entered upon the performance of the agreement, that the defendant is indebted to the plaintiff in the amount of $300 for three sets of plans and specifications not returned, that the City paid to the plaintiff the sum of $250 under the agreement. The City denied due performance by the plaintiff, denied that it was indebted to the plaintiff or that it had breached the agreement. For complete and separate defenses, it alleged, in substance, that the contract was conditioned on the City's procuring a Federal grant, that the City performed the agreement on its part, that it paid the plaintiff in full for all sums due him under the agreement, that the agreement called for the construction of a Bintz Patented Swimming Pool and that the City did not construct that kind of pool.

The issues were tried before Mr. Justice WHEELER and a jury. At the close of the evidence both parties moved for direction of verdict on stated grounds. Neither party requested to go to the jury on any question of fact. The court discharged the jury and reserved decision on the motions.

Justice WHEELER decided that the defendant had adopted and ratified the agreement, that the plaintiff had performed it so far as he was able, that the City had breached the agreement, that moneys became available to build a swimming pool on October 5, 1939, and that the plaintiff was entitled to recover 6% of the estimated cost of construction of the Bintz Patented Swimming Pool, that he was not entitled to recover 9% thereon for use of his license, that that...