Ward v. Hudson River Bldg. Co.

• Decision Date: 13 January 1891
• Parties: WARD v. HUDSON RIVER BLDG. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 230

26 N.E. 256

WARD

v.HUDSON RIVER BLDG. CO.

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from supreme court, general term, second department.

The plaintiff was a contractor and builder, and entered into contracts with the defendant for the erection of certain houses. By this action he seeks to be relieved from what he terms the ‘penalty’ contained in his contracts, and to recover from the defendant a certain amount of money withheld by it. Each of the original building agreements contained a provision that, in default of a completion of the work by a certain date mentioned, ‘the contractor shall pay to the owner ten dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages.’ The plaintiff was in default as to each contract, and on March 5, 1888, some time after the default, the parties entered into a further agreement with respect to their matters. This latter instrument recited the making of the original contracts; the failure to complete; the desire of the contractor for an extension of time, and to avoid the payment of the penalty; and then the following agreement is inserted: ‘It is mutually agreed that the sum or penalty due under said contract on March 25, 1888, shall be $1,540, by way of liquidated damages, unless said four villas and all extra work are then entirely finished,’ etc. The contract specifies what further is to be done in the way of work, etc., in order to entitle Ward to a waiver on the company's bart of his default; and it contains a further agreement, in these words: ‘It is further mutually agreed that in case said Ward fails to complete said villas on or before said 25th day of March, 1888, as aforesaid, there shall be due and owing to said Hudson River Building Company, its successors or assigns, the sum of $1,540, by way of liquidated damages,’ etc. When March 25th had arrived, the work was still not completed, and on March 30th the parties again came together, and entered into a further agreement. It recited the making of the previous contract of March 5th, the failure to complete, and that ‘the said Ward claims that, notwithstanding that fact, the penalty referred to in said contract should not be exacted by reason of the allegations of fact as contained in a type-written statement made by James M. Hunt, and this day presented to the company; and whereas, the parties hereto are willing to close all matters of difference this day, leaving the question of the said penalty for litigation, in case said Ward chooses to litigate the same, said suit to be commenced within six months from date, if at all; and the said parties reserving all other questions and property from this controversy, except the one question of penalty, as alleged.’ The parties then proceed to state their respective agreements in relation to matters of work, liens, and payments, which are not material to be particularly recited here. The statement of Hunt, referred to as containing the plaintiff's objection to the exaction of a penalty, relates the occurrence of the so-called ‘blizzard’ of March, 1888; states the consequent impossibility of proceeding with the contractor's work; argues that delay was excusable for being caused by an act of God; and then makes demands for payments, and propositions for the completion of the work, etc. This action was commenced within six months of the last contract, and the basis for the relief demanded in the complaint is that there had been a substantial performance, and that entire performance was only prevented by an act of God, in the occurrence of the great storm known as the ‘blizzard,’ and that the work had been finished and accepted by defendant. At special term the plaintiff had judgment, which was reversed at the general term, and from that reversal the plaintiff has appealed to this court.

James M. Hunt, for appellant.

Geo. W. Cotterill, for respondent.

GRAY, J., ( after stating the facts as above.)

The appellant seeks to excuse the failure to perform his agreement, and to be legally absolved from the pecuniary loss consequent thereupon, by invoking the application of an equitable rule which relieves from a penalty and from forfeiture whenever performance has been rendered impossible by the act of God, by which expression he characterizes the storms and atmospheric disturbances, in the state of New York and elsewhere, which set in about March 12, 1888, and was popularly described as the ‘blizzard.’ We do not think, however, that this is a case for equitable relief, or for any such application of the rule referred to. By the original contracts of the parties, default in completion of the houses, which was the subject-matter of their making, subjected the contractor to the liability to respond to the owner in a sum measured by the number of days of default, and agreed upon...