McMaster v. State

• Decision Date: 28 February 1888
• Parties: McMASTER v. STATE.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 542

15 N.E. 417

McMASTER

v.STATE.¹

Court of Appeals of New York.

February 28, 1888.

Cross-appeals from an award of the board of claims.

The claim herein was made by J. Smith McMaster for damages by reason of the breach by the state of New York of two contracts for work and materials for building the Buffalo State Asylum for the Insane. The asylum was established by an act, chapter 378, Laws 1870, in pursuance of which plans and specifications were duly made and adopted for the construction of a central or administration building; five male wards, designated A, B, C, D, and E; five female wards, designated in the same way; and certain out-buildings, consisting of a laundry, two barns, and an ice-house. The plans provided that the exterior facing of the walls of all the buildings should be of brown sandstone. After the adoption of the plans, and their approval by the proper state officers, the board of managers advertised for bids for furnishing the stone required for the exterior facing of the walls of all the buildings, and Linus, Jones, Peck & Co., a firm, were the lowest bidders; and the furnishing contract was awarded to them, which was thereafter, to-wit, October 9, 1871, formally executed, the managers signing the same, pursuant to the statutes, on behalf of the state. Afterwards, in January, 1872, the managers advertised for bids for cutting the stone, to be furnished under the prior contract, and the same persons, in their firm name, were again the lowest bidders, and the cutting contract was awarded to them, which was thereafter, on the 13th day of January, formally executed in the same way as the prior contract. The firm, immediately after the execution of each contract, entered upon the performance of the same, and continued to furnish and cut the stone under the contract until the month of May, 1876, at which time the administration building and the male wards A and B had been completed according to the plans and contracts. On the 25th day of May, the managers resolved to build the male and female wards C, D, and E of brick, with sandstone trimmings, and plans in accordance with this resolution were approved by the proper state officers; and thereafter the male wards C, D, and E, and the out-buildings were so built. After the completion of these wards and of the out-buildings, in November, 1877, the managers notified the firm to remove all the stone belonging to them from the asylum grounds, and after that date they were never permitted to furnish or cut any more stone, and the five female wards have never been built. In 1881, the firm assigned their claim against the state for damages on account of the breach of their contracts to the claimant, who brought the same to a hearing before the board of claims. The board then decided that the claim was barred by the statute of limitations; but that decision was reversed by this court. 103 N. Y. 547, 9 N. E. Rep. 313. Upon the rehearing, the board found that the firm would have made,-in the further performance of the two contracts, if they had been permitted to perform and complete the same,-as profits, the sum of $105,200.42, which sum includes the profit they would have made by furnishing and cutting the stone for the male wards C, D, and E, the female wards, and the out-buildings. This sum was reached by estimating the additional stone and cutting which would have been required if the contracts had been fully performed, according to the plans, and by taking the difference between the contract prices and the cost of the stone and cutting. After finding that the total amount of the profits of the firm would thus have been the sum of $105,200.42, the board of claims further found as follows: ‘That, from the evidence, the period of about five years was comprised in the construction of the main building and male wards, and the time of the contractors being substantially occupied with the care, trouble, risk, and responsibility attending such work; that to have completed the female wards and out-buildings about the like length of time would have been occupied, with the like care, trouble, risk, and responsibility attending such completion of said work and contracts; that deducting from the aforesaid aggregate sum of profits of $105,200.42 for the less time the said contractors would have been engaged, and for their release from the care, trouble, risk, and responsibility that would have attended the full completion of said work and contracts, the aggregate sum of the profits which would have accrued to said firm of Linus, Jones, Peck & Company had said work and contracts been fully performed, would have been $75,000; and which sum would have been equitable and just.’ And as conclusions of law the board found as follows: ‘That the claimant herein, as the assignee of the said firm of Linus, Jones, Peck & Company, is entitled to have and recover damages against said state, upon his claim herein, for the difference between the cost to said firm for furnishing all the stone and the cost of cutting all such stone, and the prices for which said firm were to receive for said stone and said cutting, under and in pursuance of the aforesaid contracts, making reasonable deduction for the less time engaged and for release from the care and trouble, risk and responsibility attending the performance of the whole of said contracts; that, upon the foregoing facts and conclusions, the claimant herein is justly and equitably entitled to damages in the sum of $75,000; which sum would be just and equitable.’ From the award as made the state appealed, in its notice of appeal assailing the sum on several grounds. The claimant also appealed, complaining in his notice of appeal of the reduction of the aggregate profits found by the board to the sum of $75,000, and also of the disallowance of interest upon his damages.

DANFORTH, J., dissenting.

D. O'Brien, for appellant.

J. F. Parkhurst, for respondent.

EARL, J., ( after stating the facts substantially as above.)

There is no contention on the part of the state that the award in this case is excessive, provided it is free from the objections which it makes thereto. Its claim is that there was no liability whatever, on its part, for any of the damages embraced in the award. It will conduce to perspicuity and brevity to consider the various objections under separate heads.

1. The furnishing contract required the contractors to furnish the stone of the quality known as hard sandstone for the exterior facings of the walls of the asylum buildings, and the cutting contract required them to cut such stone. The contracts contain no description of the buildings, and there is nothing in either of them specifying that the whole exterior facings of the walls were to be of sandstone; and hence it is contended that there was no breach of the contracts in the construction of the walls of some of the buildings of brick with sandstone trimmings. But it is fairly to be inferred from the language of the furnishing contract that the facings of the walls were to be of sandstone. The contractors were to furnish all such stone required and necessary for the construction of the buildings. The stone was to come from quarries in Orleans county, and the contractors agreed to lease the quarries to the state to an amount in quantity sufficient for the completion of the buildings, and authorized the state to take possession of the same for the purpose of quarrying and delivering the stone in case of default on their part to perform their contracts. While the plans and specifications do not appear in the record, they must have been put in evidence, as it appears to have been assumed on the trial that they did require all the walls to be built with sandstone facings, and such is the inference from all the facts in the case. The resolution of May 25, 1876, changing the plans of wards C, D, and E, on both sides of the asylum building, permitted those wards ‘to be constructed of brick with sandstone trimmings instead of stone entirely,’ and modified the previous plans accordingly. There was no objection or exception that pointed to the absence of the fundamental proof that the original plans required the exterior facings of all the walls to be constructed of sandstone. On the contrary, the requests to find submitted to the board of claims on behalf of the state, assumed that the original plans required sandstone, and that there was a change from stone to brick, and when, on the argument before us, the original plans and specifications were produced, and it was asserted by the counsel for the claimant that they did so require, the counsel for the state made no denial. Therefore, the finding of the board that the original plans required sandstone facings for the walls of all the asylum buildings, and the conclusions based thereon, cannot be assailed here.

2. In answer to the claim for damages on account of the change from stone facings to brick with stone trimmings, it is said by the learned counsel for the state that such change was authorized by the contracts, and that it was not therefore a breach thereof. It is not pretended that there is anything in the terms of the furnishing contract authorizing such a change. According to that contract the contractors were bound to furnish, and the state was bound to take from them, all the sandstone required for the completion of the buildings, according to the plans and specifications. But the cutting contract, made three months later, contained this clause: ‘The party of the second part reserves the right to make any change they shall deem proper in the plans and specifications of said buildings, and the work shall be performed by the party of the first part in accordance, for the prices and compensation above set forth, unless such change shall increase the expense of doing said work, in which case the party of the first part shall be paid a reasonable compensation pensation therefor, to be...