Opinion
June Term, 1896.
Arthur H. Smith and L. Laflin Kellogg, for the appellant.
Edward H. Hawke, Jr., and F.E.V. Dunn, for the respondent.
This action was brought by the plaintiff, as assignee of William J. Kelly, to recover the balance alleged to be due upon a contract for paving, flagging and curbing One Hundred and Fifty-first street in the city of New York, between Cortlandt and Railroad avenues. The answer admitted the performance of the work under the contract, and alleged that payment was dependent upon the engineer's final certificate, and that an engineer's final certificate had been given which did not include the items for which a recovery is claimed in this action; and, further, that they were not included in the contract. The answer also denied the assignment of the contract in question.
Upon the trial the contract was introduced in evidence. It contained a clause prohibiting the assignment of the contract or any moneys due or to grow due thereon without the previous written consent of the commissioner of street improvements of the twenty-third and twenty-fourth wards of the city of New York; and it was insisted that such consent not having been proved, the plaintiff, by reason of this clause of the contract, could not maintain any action against the defendant. Without passing upon what would be the effect of such a clause in a contract were the question properly presented to the court, we do not think that under the pleadings any such objection was available to the defendant. The plaintiff alleged the assignment of the contract. The defendant simply denied any knowledge or information sufficient to form a belief as to any of the allegations contained in the complaint not thereinbefore specifically admitted or denied. The assignment alleged in the complaint not having been referred to in the previous parts of the answer, may be deemed to have been denied by reason of this general denial therein contained. But all that was denied was the existence of the assignment. When the case came to trial the fact that an assignment had been executed was admitted, and hence the denial contained in the answer was met. If for any reason the defendant claimed that this assignment was not operative as to it, it was necessary to set up that fact as new matter by way of defense in order that the defendant might avail itself of it. The assignment might exist, although it might not be operative against the other contracting party because of the stipulations of the contract; but a general denial of the existence of the assignment could not bring up any such question. It would seem, therefore, that it was error upon the part of the court below to hold that the plaintiff had not established a right to maintain the action, if any cause of action existed in behalf of her assignor.
It is further claimed upon the part of the defendant that the contract providing that the final certificate and return of the engineer should be conclusive as to the amount of materials furnished and work done, and the engineer having made such a final certificate, which did not include the items for which a recovery is claimed in this action, and there being no proof of fraud upon his part, no recovery can be had; and our attention is called to various authorities in which it is held that such certificate is final as between the parties, it having been so agreed. But we fail to find any case which holds that where the engineer has, upon an erroneous construction of the contract and of the rights of the parties thereunder, deliberately excluded from his final certificate work which has been done by the contractor, although he may have acted with an honest purpose, the contractor is precluded from showing that he has done such work, and that it is included in the terms of his contract. In the case at bar it is not seriously claimed that the contractor did not do the work for which compensation is sought in this action. But it is claimed that it was without the terms of the contract; and it is upon this theory that the engineer excluded the items representing such work in his final certificate. But if it should be found upon an examination of this contract that this work or any part of it was included within the terms of the contract, it seems to us that it would be a harsh rule to hold that because the engineer had acted upon a mistaken view of the law the contractor would be remediless. We do not think that any of the cases cited goes as far as that. It is undoubtedly true that where there is any dispute in regard to the work or its character, the certificate is final if honestly given. But where a contract calls for the performance of work which the contractor has done, and the engineer, upon an erroneous construction of the contract, has excluded it from his final certificate, it is clear that the contractor has a right to recover, notwithstanding the provisions of the contract in regard to the final certificate.
It has been suggested that the work in question having been done under the direction of the engineer in charge, a recovery could be had whether it is within the terms of the contract or not. In respect to this claim it is sufficient to say that we find no evidence which would justify a recovery upon this ground.
Upon an examination of the contract it will be seen that attached thereto is a plan or profile of the work, and that in the specifications is a provision that all the work to be done should be done in accordance with this plan or profile; now it is quite clear that the contractor was bound to do all the work which was shown or exhibited upon this plan or profile. Now the work claimed for in this action as having been done under the contract and not included in the certificate consists of flagging and curbing between Morris and Cortlandt avenues. Under the evidence, and upon an examination of the plan, it appears that there was to be no curbing on the south side of the street between those avenues; but it also appears that flagging was to be done there, and it is for this flagging that the claim is made in this action.
The defendant insists that because of a special provision in the contract, to the effect that on the south side of the street, between Cortlandt and Morris avenues, about 200 feet of new flagging was to be furnished and laid, the price for the work to be included in the price paid for new pavement, no claim for flagging can be made for this locality. It clearly appears from the terms of the contract that the estimates contained therein are approximate only, and that the work to be done is shown upon the plan and profile. There was no attempt to prove that old flagging was not used so far as it was possible to do so; and there is no claim in respect to this flagging that any work was done which was not required to be done by the terms of the contract and shown upon the plan and profile, the only claim being that the contract required the furnishing of but about 200 feet of new flagging which was not to be paid for. We cannot so construe the contract. The contractor was bound to flag the south side of the street between Cortlandt and Morris avenues. He was bound to furnish about 200 feet of new flagging for that purpose, for which he could not be paid, but he certainly was not bound to furnish over 2,000 feet of new flagging without compensation. If there was any misconduct upon the part of the contractor in rejecting old flagstones for the purpose of furnishing the new, evidence of that fact could have been given by the defendant. There is no pretense, so far as this record discloses, that the work was unnecessarily done, and it seems to us, under these circumstances, that the engineer had no right in his final certificate to reject this work as not being included in the contract.
It would appear, therefore, that it was error upon the part of the court to dismiss the complaint. Certainly, with respect to this flagging, there was a question which should, at least, have been submitted to the jury under proper instructions as to whether the action of the engineer arose from a misconstruction of the contract, or whether it was the result of a determination in respect to the amount of work done and materials furnished, a subject upon which, by the terms of the contract, his decision was final if made in good faith.
We think, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
WILLIAMS, PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.