Collins v. Peckham Road Corp.
| Decision Date | 16 January 1963 |
| Citation | 236 N.Y.S.2d 415,18 A.D.2d 860 |
| Parties | Lewis G. COLLINS, a/k/a L. G. Collins, Respondent, v. PECKHAM ROAD CORPORATION et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Harry R. Hayes, Albany, for appellants.
VanNess & Russell, Greenwich, Charles B. Russell, Greenwich, for respondent.
Before BERGAN, P. J., and COON, GIBSON, REYNOLDS and TAYLOR, JJ.
Appeal from a judgment of the Supreme Court, Washington County, after trial without jury, in the amount of $19,322.34 plus costs.
In July of 1958, the Peckham Road Corporation was awarded a contract by the State of New York to reconstruct a State Highway in Columbia County. The nub of the present litigation centers on who is to bear the cost of $11,781.90 worth of materials purchased by respondent and incorporated in the work. The pertinent portion of the contract was a typewritten note which, after providing that all cement, concrete, aggregate and grout would be furnished by 'others', states: 'All other materials to be provided by the contractor.' (Emphasis added). A prior mimeographed provision in the contract stated: 'The Subcontractor agrees to furnish all materials and perform all labor necessary.' Peckham urges that instead of 'contractor' in the typewritten note the term intended was 'subcontractor', and that the contract should be reformed to rectify this 'scrivener's error' citing Born v. Schrenkeisen (110 N.Y. 55, 17 N.E. 339). The court below found that although a mistake had indeed been made when Peckham prepared the contract, respondent was unaware of the error and had relied on the belief that Peckham was to furnish the meterial. Then noting that under the rules of construction ambiguities are strictly construed against the party preparing the contract, the court below held that reformation was not available since the mistake was unilateral and there was no evidence of fraud on the part of respondent.
On examining the contract here involved it is apparent that there is present not only a contradiction between the mimeographed and typewritten portions of the document but also a superfluousness in the typewritten portion. If it was intended that respondent was not to bear the responsibility of providing any of the materials, why was not a direct statement to this effect utilized instead of first stating specifically that the cement, etc., was not to be furnished by respondent and then adding that the 'contractor', Peckham, was required to furnish 'all other materials?' Since the contract is all but completed as to the items involved in this litigation, we are not limited in resolving the question of the intent of the contracting parties to the normal tools of construction which we would have to utilize if the contract were wholly executory, but can avail ourselves additionally of the construction given to the contract by the parties themselves as manifested by their conduct (10 N.Y. Jurisprudence, 'Contracts', § 221, p. 135; e. g. Sinkwich v. Drew & Co., 9 A.D.2d 42, 44, 189 N.Y.S.2d 630, 632). We cannot agree with the finding of the court below that respondent understood that the agreement between the parties required Peckham to provide the materials in question. Respondent's entire course of conduct with respect to his obligations under the contract belies such an understanding. His purchasing and billing procedures indicate a clear division in approach...
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