Collins v. Carlin — 121 A.D. 524

Majority

p. 524

William P. Collins and Frederick P. Collins, Doing Business as Copartners as William Collins’ Sons, Respondents, v. Patrick J. Carlin and Others, Doing Business as Copartners as P. J. Carlin & Company, Appellants.

Second Department,

October 18, 1907.

Headnote

Contract — parol evidence amplifying ."writing —verdict affirmed in absence of legal error—construction of contract to do day’s work — ■ liability for unauthorized extra work.

When it is conceded that a contract is not fully expressed- in writing, parol - evidence supplementing the written portions of the contract is admissible.

When on conflicting evidence the jury has determined in: favor of one party, . .the judgment must be affirmed in the absence of legal error.

Although a contract to perform a day’s; work usually means the hours, of a calendar day which are ordinarily made use of, yet when there is evidence.that the parties intended a day of eight hours, a finding by the jury to that effect will not be disturbed. . ‘ . . -

Although a municipal contractor employed another to do extra work in the expectation that the city would pay for the' same, he is liable nevertheless to pay for the services rendered though unable to collect from the city.

Appeal By the defendants, Patrick J: Carlin.and others, doing business as copartners, etc., from a judgment of the Supreme. Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 15th day of June,-1906, upon the verdict of a jury, and' also from an order entered in said clerk’s office on the 22d day of June, 1906, .denying the defendants’ motion for a new trial made upon the minutes,

John G. Wait, for the appellants.

James A. Allen, for the respondents.

The learned justice presiding at the trial charged the jury, and no one raised an objection, that both parties to' the controversy conceded that the contract between the, plaintiffs and defendants was ■not fully, expressed in. the letters and other documents in evidence. This being true, the defendants are now in a position to urge error-in the admission of evidence, the object of which was to bring

p. 525

before the jury the real contract between the parties. The-evidence introduced by the plaintiffs, and which supplemented the written evidence, did not terid to vary a written contract, hut it served to complete the contract as understood by the parties at the time, and such evidence was clearly competent. With this question out of the case, and it clearly has no place upon this appeal if it' is- once conceded that the written evidence did not disclose the real contract, there are merely a number of questions of fact involved in the case, and these, upon a conflict of evidence, have been determined by the jury in favor of the plaintiffs and against the defendants, and in such cases, in the absence of legal error, there is nothing for an appellate court to do but to’affirm the judgment entered upon the verdict. This must be done in this case. ■

In February, 1902, the defendants were doing the carpentry and mason work on the city prison for the city of New York. In the basement of the building they had constructed a water-tight pan or caisson, intended to shut off the sub-surface water from the boilers which were to be placed thérein. Owing to "a delay in placing the boilers this caisson “ buckled ” and became unfit for the purpose for which it Was designed, necessitating repairs. The commissioner of corrections, who had charge of the erection of the city prison, desiring to have these repairs made, requested the plaintiffs to bid for doing the work.. This resulted in the plaintiffs making a proposition to the commissioner, but a question arising as to the authority of the commissioner to contract with plaintiffs, it was arranged that the plaintiffs should do the work as an extra under the defendants’ contract, and the agreement, as found by the jury, was that the plaintiffs should reconstruct the caisson for $800, and that they should do the necessary pumping in connection with the work at $10 per day, allowing eight hours for a day. ■ The questions litigated related to the pumping, it being contended on the part of 'the defendants that the contract merely called for pumping during the time the Work of reconstructing the caisson was in progress, while the plaintiffs .contended that the contract was to do all of the pumping, covering the work of construction as well as the work of ..placing the boilers by third parties afterward, and the jury has found that this was the contract, and that the work required five hundred and three-tenths days of eight hours each, aggregating $5,003. It

p. 526

is true, óf course,' that ordinarily a contract by the day means the calendar day, or the hours of a calendar day which are ordinarily made use of, and if there was only the written evidence in this case we should be disposed to hold' that there could nót' be liability beyond -the calendar days employed, but the evidence is that the parties' had a conversation over the telephone, in which .it was agreed that the work should be at the rate of ten dollars per day of eight hours, and the testimony indicates that the pumping was required at intervals throughout the twenty-four .hours, making three days in each twenty-four hours. ••. -

The real difficulty in this case arises from an effort on the part of the defendants to' help the commissioner out of an embarrassing situation. It ivas undoubtedly expected that the city would pay the defendants for this extra work and that they would pay the same over to the plaintiffs. But the city has not paid the bill which the defendants put in and which they subsequently brought an action to enforce, and now, when the plaintiffs seek to recover, the defendants urge that the contract is not what they contemplated,. though it is not seriously disputed that the defendants knew that the .plaintiffs were doing the work, and that it was not with- an expectation that the city would pay them, except as it might do so through the defendants. It works a hardship- upon the defendants, no doubt, but they were .the ones who created the situation and who induced the plaintiffs to perform the services, and-under well-known rules they must stand the loss, unless they can find a way of reaching the city, which has had the benefit of the work.

Examining the alleged errors in the light of the conceded facts, we are unable to agree Avith the defendants that there is. ground for .reversal .in this case. The learned court at the trial has ably and carefully presented the questions at issue,- and it would be a work of supererogation- tó restate the facts here. It is sufficient for this court that the result has been reached without prejudicial error.

The judgment and order appealed from should be affirmed, Avith costs.

Present — Woodward, Jenks, Hooker, G-aynor and Rich, JJ.

Judgment and order unanimously, affirmed, with costs.