Swift v. State

We think this appeal was well taken. The subject-matter of the claim submitted to the board of audit was materials furnished and work done by the claimant in the erection of a certain structure on the west bank in the lower bay of Hew York, to be used for quarantine purposes. Its erection was authorized by the legislature in 1866. (Chap. 751, Laws of 1866.) By that act commissioners were appointed, whose duty it was, among other things, to prepare specifications of the work and materials necessary for the erection of the structure, make an accurate estimate of the entire expense (§ 3), advertise for proposals for its construction, and award the contract to the person who should “ offer to erect the same for the lowest sum,” and give security for the faithful and com

The claimant responded to the advertisement in writing, stating that he had examined the specifications and form of contract, the locality in which the work was to be constructed, and the plans of the same, and that he would “ contract to build the structure therein mentioned of the dimensions, in the manner, and on the conditions required by the specifications and form of contract annexed ” thereto, upon prices named separately for- each kind of material, adding, “the prices above named are to cover the expense of furnishing all the necessary materials and labor, and the performance of all work set forth in the agreement and specifications.” His proposition was accepted and the agreement referred to executed by the con

The State, on its part, agrees that if the contractor performs on his part, it “ will pay to him the sum of $252,491.68,” “ being,” in the language of the contract, “ the aggregate cost of the construction of the structure at the prices specified in said proposals,” to be paid by installments of $20,000, upon the certificate of the engineer that the work performed and the material furnished-up to the time the certificate is given, has been performed according to the plans and specifications, and materials furnished at least fifteen per cent in excess of the amount of the respective installments, and the last installment shall be paid when the said engineer shall certify that the said exterior wall and foundation have been in all respects fully completed according to the terms of the contract.

These stipulations furnish a persuasive guide to the intention of the parties. The installment is a sum named, and not graduated by the amount of work done or materials furnished; but the payment is not to be made until the cost of work and materials furnished exceeds the installments by at least fifteen per cent, no matter how much more the excess; and the last installment is to be paid, not according to the cost of work or materials furnished — it has no reference to that — but when the work shall have been in all respects “ fully completed.”

A complete work was embraced within the plans, proposals and specifications, and nothing less was contemplated by the statute, which required a fixed sum as the price of construction. Experience gained during the construction might require changes, and for those, provision was made, not only as we have already seen, by the specifications, but also by the contract. Its ninth article declares “ that if the State, or its engineer, shall, during the progress of the work, deem it necessary to make any alteration in the plan or mode of construction, they shall have power to make the same * * *

and if such alterations increase the amount of the work, such increase shall be paid, for only according to the quantity actually done and at the price fixed in such proposals for similar work under this contract.”

It thus appears that the scheme involved, first, a work exe

It is not only apparent that the contractor was a party to this certificate, knowing its entire contents but there are provisions in the agreement which show that he must have been an active as well as a silent witness to its correctness. By one of the articles of the agreement, he was required to give his personal attention to the faithful prosecution of the work, and by another it is declared that before he should be entitled to receive either of the installments, or any payment, he must produce to the engineer satisfactory evidence that all persons who had done work, or furnished materials under the agreement had been fully paid. The fact of such information need not be dwelt upon, for neither mistake nor ignorance is pretended.

On the strength of the certificate he received from the board of commissioners a draft, dated December 30, 1870, payable to his own order, addressed to the comptroller of the State, for the sum of $44,843.45, “in payment,” as the recital is, “ of the balance due him” upon his contract for the erection of the structure in question. It was accompanied by a certificate signed by the president of the board, and addressed to the comptroller, certifying “ that the amount of the annexed draft is to be applied to the payment of the said balance,” according to the terms of his contract aforesaid, and that the said draft is given upon the certificate of the engineer, above referred to. The draft and the two certificates were attached together, and the contractor, or his indorsee, presented the same for payment and received it as early at least as the 11th of January, 1871, for on that day the draft indorsed by Swift, and the accompanying certificates were surrendered to the comptroller. It further appears from the contractor’s verified statement of claim presented to the board of audit that he admits the receipt from the State of the sum of $264,843.45, on account of the erection of the structure, and as this sum equals the contract-price of $252,491.68, and the sum of $12,351.77 allowed for extra work, it may be implied that it is made up of those two

But, nevertheless, the claimant has been allowed the further sum of $39,375.12. What is his case ? It is obvious from his statement of it that the work and materials for which he asks payment came under the agreement. He recites the contract and makes it part of his statement. Then he avers, “ that he proceeded with the work under said contract diligently and in good faith, and in all things duly performed the same,' and all the covenants and agreements therein, on his part expressed, duly kept and fulfilled; ” and further, “ that from natural causes, against or for which human foresight was unable to provide, there was necessarily, and without any fault of claimant, consumed in and about the erection of said structure a larger quantity of materials than had been provided for in the original estimates; that all such additional consumption of materials was made under the immediate direction and superintendence, and pursuant to the directions of the engineer of the State, in charge of said work; that the entire structure was completed on or about the 1st day of January, 1871, and the State accepted same, and entered into occupancy thereof on or about said day, and is now, and ever since the said last-mentioned day has remained in occupancy thereof.”

It seems plain, from the facts already stated, that there can be no merits in such a claim. The contract provided for a completed work at a fixed price, and for extra work and materials made necessary by the very causes which in this statement are put forth as the reason for departing from its limitations. It also provided for a determination by the engineer in charge as to the extra work and materials necessary; and his adjustment made with the knowledge of the claimant of the amount of extra work and materials and the sum due therefor, and the receipt of that sum by the claimant as a final payment of his account concludes him from making any further demand against the State. It is not necessary to deny that such a transaction might be open to explanation, and that as between individuals,

The learned counsel for the respondent, however, contends that the claim can stand upon the moral consideration growing out of the fact that the State received more than it has paid for. In this is error, both of fact and law. First, he claims that the engineer in charge changed the plan and thereby increased the quantities of materials and work. This is conceded; but he further assumes that the increased quantities “ put in place under the supervision of the engineer entitled the contractor to $39,375.12 in addition to the sum of $12,351.77. Of this there is no evidence. Indeed the claimant seems to have intentionally avoided such an allegation. Instead of showing by his own averment or by his own testimony the fact which, if it existed, must have been for reasons already stated within his own knowledge, he refers to the report of "W. B. Taylor, the State engineer, in office in 1873, and says, “ according to that he became entitled to receive, on account of the erection of the structure, $304,218.57,” that he received in all only $264,843.-45, and claims the difference between these sums, viz., $39,-375.12, not, therefore, on account of extras, but the entire contract.

Yet the report of the engineer to which he refers is, neither as evidence or information, of the least value. He was “ required by resolution of the assembly to make a survey and estimate of the number of cubic yards of crib work, stone, sand and other materials built, filled in and furnished in the construction ” of the work, under contract of August, 1868. It appears that the duty enjoined upon him was not performed in person, and his answer to the inquiry is, by its very terms, the result of information communicated to him by others. He says, “I visited the island, examined the work, and instructed my deputy, John A. Cooper, who accompanied me, to make the necessary survey and estimate.’ ’ The report states, “ during the progress of construction repeated delays and damages were

It is obvious that no part of this declaration was called for by the inquiry; but the report itself, based as it is upon information derived from others and upon an estimate not made by the engineer in person, could under no circumstances be considered as evidence of any fact therein stated. Nor was it intended to be the basis of any legal claim; before the board of audit the claimant was himself a witness; he proved the execution of the contract, established the fact that the State took possession of the structure in January, 1871, and continued in possession. He goes no further; speaks neither of the quantity of materials required by the contract, or furnished in the execution of the work described in it, nor of any extra materials furnished. Hpon both questions he is silent.

In his behalf, however, was examined John A. Cooper and Charles E. Haswell. Cooper was deputy State engineer from the 1st of January, 1873, until the 1st of January, 1874. He testifies that he went with Taylor to the islán d, with the assistance of Haswell, made measurements, received his data entirely from Haswell, for the purpose of distinguishing between work performed under the contract, and a subsequent contract relating to the same matter. He says, “ upon those measurements the report of Taylor was made.” He is asked by the claimant’s counsel this question, “ I wish you would state whether that report of the State engineer upon the basis of your measurement was a fair and faithful computation of the quantities that had been put upon the island by Swift ? ” Answers. “ Yes ; as mathematically correct as I could make it.” It appears from his testimony that the State engineer was not present at any time while measurements were being taken. Changes at that time had occurred in the structure through settlement, and the extent of these changes he got at approximately. When asked how near to accuracy he could come, replies, “ It depends upon the ability to approximate; some men could not approximate within .a hundred feet, and it

Hr. Iiaswell testifies that in February or March, 1871, he was appointed by the quarantine commissioners an engineer and architect in charge of the work ; that Swift was then in the process of fulfilling a later contract of 1870, for additional stone. Prior to that time he had filled the contract of 1868.

The witness shows that it was impossible to distinguish between stone furnished under the two contracts; but being asked if he could tell the difference approximately, answered,

“ I could tell it sufficiently to satisfy my sense of duty.” Being . asked by counsel to state what portion was under water as near as he could guess at it, answered, “ I cannot give you an estimate of it here, but I can give you a diagram to show you how it was got at.” Asked, “you made no computation yourself that went into the report ? ” Answered, “ no, sir; I was not called upon to do it.”

Now it is impossible to say that the testimony of this witness either verifies the report submitted by the State engineer, or contains material from which an award could be made.

The question before the board of audit was to be answered by them upon common-law evidence, and according to rules of law which would have been applicable to the adjustment of a similar claim arising between individuals. Only in this way could it comply with the duty imposed by statute, “ to administer oaths and take testimony in relation thereto,” and so “ determine the justice and amount ” of the alleged claim. (Laws of 1876, chap. 444; Laws of 1881, chap. 211, § 3), that it might “be audited or allowed according to law.” Such claims only as had been so dealt with could be paid or allowed by the legislature. (Constitution, art. 3, §§ 19,24, as amended in 1874.) There is here neither legal evidence to sustain the claim, nor moral considerations which might make its denial an apparent hardship, and on the other hand there is a defense, both in law and equity, to the benefit of which the State is entitled.

The judgment appealed from should, therefore, be reversed, and although we discover no ground on which the claimant

Judgment reversed and new hearing ordered, with costs to abide the event.

All concur, except Rapadlo, J., not voting;. Andrews, Oh. J., concurring in result

Judgment reversed.