Opinion
January 20, 1971
Appeal from a judgment of the Supreme Court in favor of respondent McIntosh Ready Mix Concrete Corporation against appellant-respondent R.D. Battaglini Corporation and in favor of said appellant-respondent against appellant, entered November 3, 1969 in Broome County, upon a decision of the court at a Trial Term without a jury. It appears that the cause of action of respondent Thomas Torto Construction Company was assigned to McIntosh prior to judgment. Early in 1966 Battaglini contracted to construct a flood control project on Patterson Creek for the County of Broome, the same being financed by Federal funds. Concrete to be supplied was required to undergo tests for its compressive strength and, under the specifications, no single test could fall below 3,200 p.s.i. and the average of any five consecutive strength tests had to be 4,000 p.s.i. The tests were to be performed in accordance with ASTM C-31, the designation of American Society for Testing and Materials publication C-31, and employees of the Soil Conservation Service of the United States Department of Agriculture prepared and transported test samples to the Empire Soils Investigations, Inc., of Groton, New York for testing. Battaglini, in turn, made an oral agreement with McIntosh Ready Mix Concrete Corporation whereby the latter undertook to supply the concrete in accordance with the plans and specifications of the contract between Battaglini and the county. On October 24, 1966 McIntosh delivered a load of concrete for use in constructing the riser, a part of the dam, and it passed the slump (indicating the water-cement ratio) and air content tests. However, a report from Empire Soils stated that the compressive strength test, performed after the standard waiting period of 28 days, showed a strength of 3,083 p.s.i., which lowered the five consecutive test average to 3,831 p.s.i., thus being below the contract minimum for a single test as well as for said average. The county required Battaglini to remove concrete and rebuild the riser, McIntosh supplying the additional concrete and Thomas Torto Construction Corporation furnishing certain labor and material in the reconstruction. McIntosh and Torto instituted the action to foreclose mechanic's liens filed against Battaglini and the county for the materials and labor supplied. Battaglini counterclaimed against McIntosh, alleging that the latter supplied defective concrete, and interposed, in the alternative, a cross claim against the county, asserting substantial performance of the contract. The contract provided that "[t]o the extent specified by the Contracting Officer at the time of determining to make off-site inspection or test, such inspection or test shall be conclusive as to whether the material involved conforms to the contract requirements", the contracting officer being defined as the person designated and authorized to enter into and administer the contract on behalf of the contracting local organization or his successor or authorized representative. Where a contract contains certain specified tests of performance and provides that the passing of such tests shall be deemed conclusive proof of performance, the contract is conclusively presumed to have been performed upon the completion or fulfillment of the conditions constituting such tests (10 N.Y. Jur., Contracts, § 317; cf. 20 East 74th St. v. Minskoff, 308 N.Y. 407, 413). Failure to pass the test may defeat a recovery ( Logan v. Consolidated Gas Co., 107 App. Div. 384) but a party cannot rely on a condition precedent, such as the fulfillment or passing of a test, where the nonperformance of the condition was caused by or consented to by the party itself ( O'Neil Supply Co. v. Petroleum Heat Power Co., 280 N.Y. 50, 56; cf. Hagadorn v. McNair, 109 App. Div. 759). Where the work, in fact, has been substantially performed in accordance with the provisions of a contract, the failure to take or pass stipulated tests, due to the fault or neglect of the party for whose benefit they were to be accomplished, should not bar recovery (cf. Arc Elec. Constr. Co. v. Fuller Co., 24 N.Y.2d 99, 104; Howard v. American Mfg. Co., 162 N.Y. 347; Du Pont De Nemours Powder Co. v. Schlottman, 218 F. 353, 355). There was ample evidence, as outlined partially in the decision under review, to support the findings made by the Trial Justice that the Federal employees, concededly acting as agents of the county and who controlled the test sampling, violated, in different respects, the testing requirements of ASTM C-31 and, therefore, that the county was not justified in rejecting the questioned concrete on the compression test taken. The court's refusal to find that the actual compressive strength of the concrete was below specifications was not erroneous since there was sufficient evidence to support its finding, independent tests, among other things, indicating that the concrete met specifications. Neither Battaglini nor McIntosh was estopped from questioning the test procedures because of a failure to object until the test results were received, since there is no evidence that either knew that the cylinders were being mishandled or acquiesced in the procedures employed by the county's agents. Judgment affirmed, with costs to respondent McIntosh Ready Mix Concrete Corporation against appellant County of Broome. Reynolds, Greenblott, Cooke and Sweeney, JJ., concur; Herlihy, P.J., concurs in the following memorandum: I concur for affirmance, but solely upon what I consider to be the rationale of the trial court's decision to wit: that after making certain findings of a violation of the requirements of the ASTM C-31 test, the court concluded "it is not just or equitable to penalize the general contractor or the plaintiff, McIntosh, under the present circumstances."