Hart v. American Concrete Steel Co.

• Decision Date: 09 July 1921
• Parties: HART v. AMERICAN CONCRETE STEEL CO.
• Court: U.S. District Court — Eastern District of New York

278 F. 541

HART v. AMERICAN CONCRETE STEEL CO.

United States District Court, E.D. New York.

July 9, 1921

L. W. &amp A. B. Widdecombe, of New York City, for plaintiff.

William S. Haskell, of New York City, for defendant.

GARVIN District Judge.

Plaintiff made a contract with defendant, whereby plaintiff agreed among other things, to excavate, pump, and backfill in connection with a building erected at Clifton, Staten Island by Louis De Jonge & Co. A jury was waived by the parties, and the case has gone to trial, on a somewhat complicated state of facts, with defendant practically admitting that an undetermined amount is due. The suit is therefore in the nature of an accounting. The complaint sets forth four causes of action, which will be considered in order.

By the first, plaintiff asserts the right to recover $5,999.95 under a contract which provides that defendant will pay 90 cents per cubic yard for all material excavated to the underside of the first floor and $1.90 per cubic yard for all material below. Plaintiff claims that altogether 18,896 cubic yards were excavated, of which 6,507 are within the former class and 12,359 are in the latter. Defendant admits 18,627 cubic yards, but contends that 8,699 fall within the first class and 9,928 within the latter. The important question is the agreement of the parties. The contract was made in writing August 10,1916, and provides that plaintiff shall furnish labor, etc., 'in accordance with the plans and specifications prepared for same by Valentine and Kissam architects, as follows: All work to the underside of the first floor to be done at 90 cents per cubic yard. All other excavation at $1.90 per cubic yard.'

The court must determine what meaning is to be given to the expression 'underside of the first floor,' and what line of division was thereby intended; the question being whether the material included in the space between the top and lower surfaces of the floor falls within the 90-cent or $1.90 class. It may be fairly assumed, unless the contrary clearly appears, that the parties intended to provide for a definite line of division. Plaintiff contends that this is a uniform line, to wit, elevation 105.73. Defendant, on the other, hand, advances the claim that the lower surface of the first floor was intended, notwithstanding the fact that the floor varied in thickness, which would make the line of division inconstant. Plaintiff's construction finds support in a statement appearing in the estimate of quantities to be excavated, attached to and made a part of the specifications, which, with the plans, are a part of the contract and must be read in connection therewith. This estimate contains the expression 'to underside of first floor level. ' Both the foundation and power house foundation plans show only one elevation, to wit, the first floor elevation 105.73. Defendant claims the elevation should be 100, but no such elevation appears in the plans.

Some of defendant's witnesses, on cross-examination, admitted that excavations were made with reference to the elevation 105.73, which is a circumstance to be considered in favor of plaintiff's contention. While the work was in progress, defendant's engineer gave plaintiff's representative a plan showing certain depths to which the excavation was to be carried, all determined with reference to the elevation 105.73. The evidence discloses, therefore, that 'underside of the first floor' was used to indicate 'underside of the first floor level'; i.e., elevation 105.73. It is quite clear that the provision in the contract that work 'to the underside of the first floor' may mean either to the upper or lower surface thereof, and therefore it is helpful and permissible to ascertain the interpretation given by the parties themselves. Insurance Co. v. Dutcher, 95 U.S. 269, at page 273, 24 L.Ed. 410; Beaver E. & C. Co. v. City of New York, 192 A.D. 662, at pages 667 and 668, 183 N.Y.Supp. 386. There is also direct testimony in the case that plaintiff himself called defendant's attention to this expression in the contract, and that the parties agreed that the meaning intended was as plaintiff claims. This was denied, but as plaintiff's proof depended largely upon plaintiff's testimony and that of his son (to both of whom I shall later refer), I find for the plaintiff upon that disputed question of fact, and likewise as to the quantity of material excavated.

It now must be determined whether the proof establishes that plaintiff duly performed what was required of him under the contract. This involves a consideration of (1) whether he did the work called for by the contract, as modified; (2) whether the work was done with promptness and diligence; and (3) whether the failure to obtain the architect's certificate bars recovery. From all of the testimony I have been able to reach no other conclusion than that after January 1, 1917, progress was almost continuously impeded and delayed by defendant's failure to lay out the work (which was concededly its duty), and by the presence of rubbish, ice, snow, water, and articles of various sorts in such quantity as prevented plaintiff from carrying forward the excavation and removal of material. If there was delay on plaintiff's part prior to January 1, defendant's conduct in permitting plaintiff to proceed with the contract estops it from interposing the delay as a defense to an action for the agreed price. Deeves & Son v. Manhattan Life Ins. Co., 195 N.Y. 324, 88 N.E. 395.

Letters from plaintiff, written to defendant in May, 1917, which may be interpreted to mean a demand then made for a sum less than he now seeks, do not preclude him from a recovery of his just due. The case of Williams v. Glenny, 16 N.Y. 389, is in point in the determination of this question in a controversy such as is involved in the instant case.

The failure to obtain the architect's certificate, even if it is required by the contract, does not bar recovery, provided plaintiff was not at fault. Gearty v. Mayor, etc., of New York, 171 N.Y. 61, 63 N.E. 804; Caldwell & Drake v. Schmulbach (C.C.) 175 F. 429; Wilson v. Curran, 190 A.D. 581, 180 N.Y.Supp. 337. The architects were requested by plaintiff to furnish a certificate. They did not refuse to do so on the ground that plaintiff had failed to do the work as required by the contract, and the evidence does not justify a finding that such failure in fact existed.

The second cause of action is not disputed, except that a small amount should be deducted from the amount claimed by consent.

The third cause of action is...