Citations
- 35 A.D. 161
Full opinion text
Hardin, P. J.:
Plaintiff’s complaint alleges that a contract, bearing date the 28th day of June, 1894, was entered into between William E. Warren and the defendant, whereby the said Warren agreed to pave portions of: Seneca street, Canisteo street, Broad street and Loder street in said city,' for which the defendant agreed to pay :
“ For all excavations, per eu. yd., twenty-seven cents (27c.).
“ For pavement with concrete foundation, per sq. yd., one dollar and sixty-three cents ($1.63).
“ For stone curbing, furnished and set, per lin. ft., thirty-nine cents (39c.):
“ For circular curb corners, furnished and set, per lin. ft., fifty-nine cents (59c.).
“ For stone curbing taken up and reset, per lin. ft., seven cents (7c.).
“ For 4-inch drain tile, furnished and laid, per lin. ft., five cents (5c.).
“ That the price aforesaid stated for 4-inch drain tile was the price bid for the under-drain.”
The complaint also alleges: “ That at the request of the defendant and its agents the said Warren, while building said paving, performed other work, labor and services, and furnished material not included in the specifications in said contract for said paving, an itemized statement of the amounts of which, the value and character thereof being set forth in Schedules £ A’ and 6 B ’ hereto annexed, which are referred to and made a part of this complaint.”
It is also averred that the claims mentioned in Schedules A and B were verified and presented to the common council of the city inore than three months before the commencement of this action, and that the common council refused and neglected to'audit or pay the same. It is also alleged in the complaint: “ That before the commencement of this action (Warren) sold, assigned, transferred and set over to this plaintiff his cause of action aforesaid.”
The answer alleges that the defendant’s Schedule A “ is for work, labor and services rendered and materials furnished under and by the terms of the contract mentioned in plaintiff’s complaint. * * * That the work, labor and services and materials last above mentioned is not extra work and materials, but a part of the contract, and has been paid for by defendant at the contract price.”
It is alleged that, by the terms of the contract and the plans and specifications accompanying the same, “It was optional with the defendant to require the laying of drain tile in the under-drains mentioned in the complaint or not,” and that the work and materials alleged in the complaint to be in the “ building of an under-drain and filling the same with broken stone, was, in fact, a part of said contract and not extra work, and that the plaintiff is not entitled to recover therefor, as all the same has been paid for by defendant at the conti-act price.”
The answer also alleges that it was provided by the contract: “The said party of the second part (W. E. Warren) further agrees that he will give his personal attention to the faithful prosecution of said work, a/>id that he will not assign or sublet the same (meaning said contract) without the consent of the party of the first pa/rt (meaning this defendant).”
It is averred that the said Warren did assign said contract to this plaintiff, and thereby made a substantial breach of the contract and a violation of its terms and conditions.
The referee finds the execution of the contract by Warren with defendant, and he also finds: “ That the defendant reserved the right, under said contract, to make minor changes in the plan of the proposed work, deemed by the engineer for the best interests of the city, and to have said under-drains constructed of broken stone instead of gravel and drain tile at its election, and the defendant did so elect, and such under-drains Avere constructed of said stone by such change of plan. That the price of five cents per lineal foot was intended by both parties to be and was the price finally agreed on for such modified under-drains, and that said Warren, as agent of the plaintiff, constructed said under-drains as said plan Avas modified and filled the same with broken stone ; that the length of said under-drain, in the aggregate, Avas 10,824 feet, and the amount for which the defendant became indebted was $541.20, of which $393 have been paid before the commencement of this action, and that ° $148.20 remain due therefor with interest from completion of said contract.”
It is found by the referee that the earth taken from the excavations was hauled at a much longer distance" than specified in the contract, and “ That said Warren and this plaintiff did haul it a much longer distance under an agreement between said Warren and the defendant, made during the progress of the work and immediately after it was commenced, to pay therefor tAvo cents per cubic yard, said price covering the entire overhaul and work set forth in plaintiff’s complaint, Schedule B, and that the same amounted to the sum of $927.38, and which price defendant agreed to pay and said Warren agreed to accept.”
The evidence does not support the finding made :
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