Langley v. Rouss
| Decision Date | 15 May 1906 |
| Citation | 77 N.E. 1168,185 N.Y. 201 |
| Parties | LANGLEY v. ROUSS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by John Langley against Charles Broadway Rouss, continued after his death against Peter W. Rouss, his executor. From a judgment of the Appellate Division (94 N. Y. Supp. 108), affirming a judgment for plaintiff entered on a verdict, and an order denying a motion for a new trial, defendant appeals. Reversed, and new trial granted.
The plaintiff entered into a contract with the defendant's testator in his lifetime by which the plaintiff agreed to perform certain mason and carpenter work in the erection, alteration and extension of certain buildings on Broadway, in the city of New York. The contract has been performed and the contract price fully paid. This action is brought to recover for certain alleged extra work consisting of:
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¦(1) Shoring, sheath piling, sustaining and¦ ¦
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¦underpinning adjoining wall to 555 ¦ ¦
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¦Broadway ¦$ 3,414 40¦
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¦(2) Sustaining and shoring of beams and ¦ ¦
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¦flooring of old building while columns ¦ ¦
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¦and girders were being put in place ¦6,600 00 ¦
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¦(3) Temporary smoke pipe for boilers while¦ ¦
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¦chimney was being built ¦275 00 ¦
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¦(4) Shoring roof of old building where ¦ ¦
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¦bulkhead has been erected; building ¦ ¦
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¦temporary roof; removing tin roof; ¦ ¦
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¦taking out fireproof arches; taking ¦ ¦
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¦down brick wall; furnishing and ¦ ¦
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¦putting in place new arches for two ¦ ¦
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¦stories of bulkhead on the southeast ¦ ¦
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¦corner of the old building ¦1,215 90 ¦
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¦ ¦$11,505 30¦
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The defendant's testator by his answer denied the allegations of the complaint so far as it relates to said alleged extra work, and alleged that the labor and materials for which the plaintiff seeks to recover in this action were and each of the same was included in and covered by said contract, and that the plaintiff has been fully paid therefor. Said testator further answering said complaint alleged that it was expressly agreed by and between the parties to said contract that no alterations should be made in the work shown and described by the drawings and specifications annexed to and forming a part of said contract, except upon a written order of the architect, and that no written or other order was given by the architect in charge of said work for the alterations, or for the work and materials mentioned in the complaint, and that by said contract it was further provided that no extra work would be allowed in any case, unless an itemized estimate should be submitted to the contractor and the architect's order in writing be given for the same, and it further alleged that for the extra work and materials referred to in the complaint no itemized estimate was submitted by the contractor, and no order of the architect in writing or otherwise was given for the same.
By the contract so entered into by and between the defendant's intestate and the plaintiff, it was provided: No itemized or other estimate was ever submitted by the contractor to the architect or to said testator in his lifetime, or to the defendant for the alleged extra work mentioned in the complaint, and the architect's order in writing was never given for the same. It is not shown that said intestate or the defendant had any knowledge of the plaintiff's furnishing material or performing work in connection with the erection, alteration, and extension of said buildings other than as a part of the materials and work agreed to be furnished and performed in said contract or that said testator ever ordered said work or in any way ratified or confirmed any action or agreement, if any made, by the architect relating thereto.
Evidence was received upon the trial of the action by which plaintiff claimed that the architect ordered said alleged extra work, and waived the provisions of the contract in regard to an itemized estimate and written order therefor. After the issues were joined in this action Charles Broadway Rouss, the defendant and person with whom the contract was made, died, and thereafter the action was by order continued against his executor. On the first trial of the action the court dismissed the complaint upon the merits. From the judgment entered thereon an appeal was taken to the Appellate Division and the judgment was reversed and a new trial granted. Langley v. Rouss, 85 App. Div. 27,82 N. Y. Supp. 1082. On the second trial the issues were submitted to a jury, and a verdict was rendered for the plaintiff. From the judgment entered thereon and from an order denying a motion for a new trial an appeal was taken to the Appellate Division, and the judgment and order were unanimously affirmed. Langley v. Rouss, 106 App. Div. 225,94 N. Y. Supp. 108. From such judgment the appeal is taken to this court. Further facts appear in the opinion.John J. Rooney, for appellant.
Nelson Zabriskie, for respondent.
CHASE, J. (after stating the facts).
The architect was expressly made the agent of the owner for the purposes of the contract, but such agency, so far as it related to making alterations, or directing that extra work should be done, was limited as in the contract stated, to such orders as he should give in writing. The restrictions on the authority of the architect were for the protection of the owner. Where contracts including plans and specifications involve a great amount of detail, and the merits of claims for alterations and extra work are difficult to determine and adjust after the work is completed, a provision requiring the contractor to submit itemized estimates of the expense of proposed alterations or extra work, and that the...
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... ... v. United States, Ct. Cl ... 567; Pitt Construction Co. v. Alliance, 12 F. 28; ... Horgan v. New York, 55 N.E. 204; Langly v ... Rouss, 77 N.E. 1168; Faber v. New York, 118 ... N.E. 609; Foundation Co. v. State, 135 N.E. 236; ... McGovern v. New York, 139 N.E. 266, ... ...
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Webb-Boone Paving Co. v. State Highway Comm.
...& S. Dredging Co. v. United States, Ct. Cl. 567; Pitt Construction Co. v. Alliance, 12 Fed. 28; Horgan v. New York, 55 N.E. 204; Langly v. Rouss, 77 N.E. 1168; Faber v. New York, 118 N.E. 609; Foundation Co. v. State, 135 N.E. 236; McGovern v. New York, 139 N.E. 266, reargument denied 142 N......
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...to any compensation for extra work unless the engineer or architect gives a written order therefor. Langley v. Rouss, 185 N.Y. 201, 77 N.E. 1168, 7 Ann. Cas. 210, and note page 213. In this case, had the contract provided that the agreement for extra work should be between the contractor an......
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... ... not be entitled to any compensation for extra work unless the ... engineer or architect gives a written order therefor ... Langley v. Rouss, 185 N.Y. 201, 77 N.E. 1168, 7 ... Ann.Cas. 210, and note page 213. In this case, had the ... contract provided that ... [187 P.2d 221] ... ...