Citations
- 7 A.D. 242
Full opinion text
Williams, J.:
There seems to be no dispute but that the quicksand which filled the tiibe entered through the bottom of the thirty-eight -inch tube in the water stratum. There is dispute as to where the quicksand came from, whether it was in the water stratum before the thirty-eight-inch tube was sunk, or whether it went down from above the hard pan stratum during the time the work was being done, or after it was completed, and whether if it went down from above the hard pan stratum, it went down through an opening around and next to the outside of the tube or through other openings originally existing, or which had been made by the defendant while sinking the forty-two-inch tube, or while making borings to ascertain the condition of things below the bottom of the forty-two-inch tube. It cannot reasonably be claimed that the duty of the plaintiff, to prevent the quicksand from going down from above the hard pan stratum, extended beyond the closing up of any opening around and next to the thirty-eight-inch tube, so as to prevent sand going down there. Considering thé manner in which the thirty-eight-inch tube was sunk and the work was done, it is quite doubtful whether any opening was left about the tube through which the quicksand could have found its way into the water stratum below, and whether the presence of the quicksand in the tube should not be accounted for in one of the other ways suggested. But "whether this be true or not, there seems to have been no'way, considering the manner in" which the work was done, in which any opening outside the thirty-eight-inch tube, and between it and the hard pan stratum, could, by the use of Portland cement or other suitable materials, have been closed up. The only place at which such materials could have been applied was between the thirty-eight-inch and forty-two-inch tubes by way of making the joints between the two different sized tubes firm and solid, so as to prevent quicksand entering the tubes at that point.
The connection with the hard pan was necessarily made by sinking the thirty-eight-inch tube through it, and there was no way in which material could be applied outside the thirty-eight-inch tube so as to strengthen such connection between the tube and the hard pan next to it. The contract should be construed in view of these considerations. It could not well be said that the parties intended that the plaintiff should do any act in carrying out the contract which was impossible, in the ordinary way in which such work was to be done. The construction of the contract claimed by the plaintiff seems to have been concurred in by the defendant.
Underwood, writing for the . defendant the letter of July 25, 1888, said: “ On taking out the sand, the joint between the 42 and the 38-inch pipe, which was a part of your contract to make, was found to be gone, and this accounted for the presence of the sand in the tube. I want nothing but what is fair, but I want to know that the tube is tight, that the joint is well made, so that the sand won’t come in, and there is no way of ascertaining that fact without making a test of the tube with the air taken off. * * * The very object of the tight joint was to keep out the quicksand just above the hard pan, as you will see by referring to the contract.”
In view of the suggestions here made, and of the reasons stated by the learned referee in his opinion, we regard the construction given by the referee to the clause of the contract in question as the proper one, and we see no reason to doubt the correctness of the decision made in the case. We concur in the conclusion arrived at by the referee that the proofs failed to establish any negligence on the part of the plaintiff in the performance of the work, rendering it useless and of no value.
The judgment appealed from should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs,