Complete Machinery & Equipment Co. v. Gelman

• Decision Date: 30 January 1964
• Citation: 20 A.D.2d 637,246 N.Y.S.2d 231
• Court: New York Supreme Court — Appellate Division
• Parties: COMPLETE MACHINERY & EQUIPMENT CO., Inc., Plaintiff-Respondent, v. Benjamin GELMAN, d/b/a Gelco Builders, Defendant-Appellant.

Page 231

246 N.Y.S.2d 231

20 A.D.2d 637

COMPLETE MACHINERY & EQUIPMENT CO., Inc., Plaintiff-Respondent, v. Benjamin GELMAN, d/b/a Gelco Builders, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 30, 1964.

Robert R. Hume, New York City, of counsel (Lewis Stockman, New York City, on the brief; Hart, Hume & Engelman, New York City), for appellant.

Louis Grossman, New York City, of counsel (Arthur J. Haussman, New York City, on the brief; Grossman & Grossman, New York City), for respondent.

Before BOTEIN, P. J., and McNALLY, STEVENS, STEUER and WITMER, JJ.

PER CURIAM.

Defendant had a contract with the Department of Public Works for the dehydration of a certain area in Queens County. Defendant leased machinery for the performance of this contract from plaintiff. The leasing was by a written contract and it is this contract that is the basis of the suit.

The first cause of action is for a balance due on the rental price. The balance is made up of two items: $59 which remained unpaid on the stipulated rental, and $800 claimed to be due as additional rental under a clause of the contract. The first item is conceded. The validity of the second claim depends on the correct interpretation of the contract clause. The clause reads:

'We [plaintiff] hereby guarantee an upset price of $26,000.00 to cover the cost of rental, installation, removal and operation of a Complete Wellpoint System for a period of twelve weeks.

'[Defendant] will pay the rental, trucking and sales tax of the Wellpoint System, a total of $6,141.22, to [plaintiff] and also carry the payroll for installation, removal and operation for a twelve week period of this Wellpoint System.

'It is further understood, that should the upset price of $26,000.00 be reduced, and that after allowing for the $6,141.22 rental, etc. and furnishing of the supervision of installation, operation and removal due to [plaintiff], the difference between the balance of the upset price, $19,858.78, for said installation, removal and operation for a twelve week period, and the final cost, will be split fifty-fifty between [plaintiff and defendant].'

It appears that plaintiff had considerable experience in this type of work while defendant had none and this was its first venture in the field. Defendant made available to plaintiff the borings supplied to it by the city, and on the basis of these the twelve-week estimate for completion of the contract was arrived at. Plaintiff advised the defendant in connection with the bid and assisted it in the installation of the machinery. Defendant was not entirely reassured by plaintiff's advice in this connection and insisted on a period of free rental should the work take more than twelve weeks. Plaintiff offered the use of the machinery free thereafter for two weeks. Defendant rejected the offer. Plaintiff then offered eight weeks, which was again rejected. Plaintiff finally consented to allow the machinery to stay on the job rent free after the twelve weeks until the job was completed. The pertinent language of the contract reads:

'Should the wellpoint equipment be required after the twelve week pump period, it will be left on the job at a no charge basis and that [defendant] will carry and be responsible for the pump operation payroll.'

From this it is patent that a twelve-week period was estimated for performance. And the record is clear that had the borings truly represented the subsurface conditions, this estimate would have been ample. However, this did not prove to be the case, and the contract took far longer--actually the machinery was on the job for some forty weeks.

The upset price of...