Bradley v. McDonald

[1] Those who became subcontractors under McDonald were in contemplation by the parties and intended to be benefited by this provision as fully as if they had been specifically, named therein, and are therefore entitled to hold the Construction Company liable for their claims. Pond v. New Rochelle Water Co., 183 N. Y. 330 , 76 N. E. 211 , 1 L. R. A. (N. S.) 958 , 5 Ann. Cas. 504. On July 31, 1900, plaintiff and McDonald entered into a subcontract, by which the plaintiff undertook, in strict conformity with the specifications and plans and in strict conformity with all of the provisions of the contract, to furnish all the machinery, materials, tools, and labor necessary, and in a good, substantial and workmanlike manner to construct, complete, and finish the work therein specified on said rapid transit railroad embraced in subsection No. 6, beginning at the center of Sixtieth street and extending to the center of 104th street, on Broadway, being subdivisions A and B "of said section. As compensation for the services, materials, and labor required by the contract plaintiff was to receive certain specified sums for certain defined units, as follows:

Earth excavation, including removal and. refill........ $ 2.00 per cubic yard

Bock excavation, south of center line of Eighty-Second

street, including removal.......................... 3.40 “ 1

Bock excavation, north of center line of Eighty-Second

street, including removal............ 3.25 “

Hauling, erecting in place and painting all steel and

iron work per ton of 2000 lbs...................... 13.00 per ton

Portland cement concrete, including painting or plastering ............................................ 8.00 per cubic yard

Natural cement concrete, including painting or plastering ............................................ 7.25 “

Common brick masonry.............................. 12.00 “

Pacing brick masonry............................... 25.00 “

Stone pedestal masonry............................. 35.00 “

Cut stone masonry.................................. 35.00 “

Bestoring street surface and repaving................. 3.50 per square yard

Bestoring park surface and repaving................. 1.75 “

Vault lines..................«....................... 20.00 *

In addition thereto, plaintiff was to receive the sum of $160,000 for the construction and reconstruction of sewers along and off the route of the railway, stone, pipe, or tile drains, all water, gas, and other pipes, electric cable conduits, vaults, and subways, and other surface and subsurface structures as shown on plans, including excavation, back-, filling and restoring street surface, except trenches for sewers along the route of the railway and adjoining the said railway, which were to be paid for at the prices therein provided for excavation and restoring street surface. It has been found that the plaintiff completed his contract in good and workmanlike manner, as required by its terms, on.or before October 24, 1904. It has also been found that a balance was due upon the original contract amounting to the sum hereinbefore stated. It further appears that the construction of this underground railroad involved work of a character and magnitude theretofore unequaled, and even with the assistance of the best engineering talent

[2] It is claimed that plaintiff cannot recover, as no certificate was issued by the chief engineer of the defendant company until after the commencement of this action. We think the record supports beyond dispute the conclusions of the referee that as to the extra work the issuance of this certificate had been waived by the defendants, who by the mutual agreement of all the parties substituted for it the force account system before described. If such a certificate had been required to be obtained by plaintiff, its absence would have been explained by the fact that, as found by the referee, it was wrongfully, unreasonably, and illegally withheld and refused.

[3, 4] It is contended that it was error to receive in evidence the books of the plaintiff showing the entries made from the white slips, inasmuch as the slips themselves had been lost or destroyed, and they are claimed to have been the primary evidence which alone was admissible. It is significant that, although the defendant had been furnished daily with copies of the entries from the slips, they did not preserve them and could not produce them upon the trial. Every superintendent was called by plaintiff to testify to the accuracy of the accounts, and most of the foremen as well. Neither Moore nor any one else produced as a witness has sought to impeach their accuracy. In repeated discussions over plaintiff’s claim no attack was made upon their correctness. In fact, at various times the defendant company has paid on account of these claims for extra work nearly $400,000, although $270,000 so paid was by consent of the parties withdrawn therefrom and applied on account of the original contractual indebtedness. From the evidence disclosed by this record, such an attack upon the claims would have been futile. Here was a great work in which a method was specifically adopted under the defendants’ direction, and by their resident engineer, for keeping track of the cost of work which he had first determined to be extra work, a determination entirely within his power to make. This record discloses no reason for doubting the good faith of his decisions, or the credibility of his testimony. The defendants’ counsel himself first offered in evidence certain of the plaintiff’s books, evidently believing that he could show inaccuracies therein, which he did not succeed in doing. • He persisted in this offer, although warned by the referee that by so doing he was making all the books material. However, in view of plaintiff’s faithful adherence to the course of keeping accounts devised for him by the defendants, not only were the books of account from which the monthly statements were prepared, and which were based upon the original white slips, admissible in evidence, but the retention without objection by the defendants of the monthly statements constituted an account stated upon which plaintiff might well have relied without going into the accuracy of the account themselves. See Spellman v. Muehlfeld, 166 N. Y. 245 , 59 N. E. 817 ; Rathborne v. Hatch, 80 App. Div. 117 , 80 N. Y. Supp. 347 . Electing not to do so, he has proven in detail his right to the full recovery given him. It is also claimed that error was committed by the receipt in evidence of certain admissions made by

[5] The final objection which we are urged to consider is against the awarding of any interest upon plaintiff’s claim. The plaintiff’s contract was completed on October 24, 1904. The referee has allowed interest as to all save the eleventh, twelfth, and sixteenth causes of action from January 25, 1905, being 90 days after the time of completion, as under the provisions of the contract payment was to be made to the plaintiff within 90 days after the completion of the work and its acceptance. As the work was accepted upon its completion, this would seem to be the proper date from which to start the running of interest if it is to be allowed at all. The remaining three claims have been limited in the allowance of interest to the time when the request for the certificate as to them was made and refused, namely, June 5, 1906. These claims were for excavation and sheathing. While it may be difficult to lay down a general rule applicable to the allowance of interest upon unliquidated claims, since much must depend upon the particular circumstances of each case, we think that there are certain general principles well defined and settled by authority which control the determination of the right to interest in this particular action. As a general rule, interest is not recoverable upon unliquidated damages. Where, however, although a demand is unliquidated, the amount thereof can be readily ascertained by mere computation, interest thereon will be allowed. 22 Cyc. p. 1513. In McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 469 , the court said:

“The old common-law rule, which required that a demand should be liquidated, or its amount in some way ascertained before interest could be allowed,

lias been modified by general consent, so far as to hold that, if the amount is capable of being ascertained by mere computation, then it shall carry interest; and this court in the case of Van Rensselaer v. Jewett, 2 Comst. [2 N. Y.] 135 [ 51 Am. Dec. 275 ], went a step further’, and allowed interest upon an unliquidated demand, the amount of which could be ascertained by computation, together with a reference to well established market values, because such values in many cases are so nearly -certain that it would be possible for the debtor to obtain some proximate knowledge of how much he was to pay.”'

In White v. Miller, 78 N. Y. 399 , 34 Am. Rep. 544 , the cases upon the subj ect of interest were collected and discussed, and the conclusion reached that there was no authority holding that where the claim sounds solely in damages, is unliquidated and contested, and the amount so uncertain that a demand cannot set the interest running, that it can be set running by the commencement of the action. In Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y. 331 , 21 N. E. 735 , 1037, 4 L. R. A. 566 , interest upon an unliquidated claim was not allowed because it was uncertain in amount and speculative in character. In Gray v. Central R. R. Co. of New Jersey, 157 N. Y. 483 , 52 N. E. 555 , it was said (that being an action for the recovery of unliquidated damages) that whether interest was recoverable therein depended upon how far the plaintiff’s - demand was such that it was capable of being ascertained, or computed, if only approximately, by reference to established market values. In Sweeny v. City of New York, 173 N. Y. 414 , 66 N. E. 101 , the court said:

“The claim now before us is not so peculiar in its character as to take it Without the general rule. The price to be paid for each class of labor or material was fixed by' the contract, and the amount due to the plaintiffs was merely a matter of computation. If there was difficulty in ascertaining the quantities of labor and material furnished, it proceeded from the failure of either party to keep accurate account of the work done. Doubtless this to some extent placed the city at the mercy of the contractors, and it had to rely on their integrity.”

The right of the contractor to recover in that case was upheld. In Gutter v. Gudebrod Bros. Co., 190 N. Y. 252 , 83 N. E. 16 , the allowance of interest upon profits recovered by plaintiffs was affirmed upon the ground that the amount thereof was capable of ascertainment by the defendant at the time of the sale; he knew the cost of manufacture of each box of goods and the exact sum he allowed to purchasers for' discount, and could have ascertained the actual cost incurred by him in making sales. ■ In Sipperly v. Stewart, 50 Barb. 62 , it was held that interest is allowable where the values of the work performed and the materials furnished are so nearly certain that it would be possible for the debtor to obtain some proximate knowledge of how much he was to pay. In Sloan v. Baird, 12 App. Div. 481 , 42 N. Y. Supp. 38 , it was said that, where the damages are unliquidated, interest is, not to be allowed unless it is such as tó be easily ascertained and computed at the time of the breach from facts then known to exist. In Braas v. Village of Springville, 100 App. Div. 197 ,. 91 N. Y. Supp. 599 , it was held that interest was recoverable where .unliquidated damages were such that the amount thereof could be made definite and certain within 'certain rules of computation, in which case it would seem -that it can

It seems clear, therefore, while upon the facts of individual cases embarrassment may arise as to the application of the rule, that interest upon a claim is to be allowed where the compensation agreed to be paid by the parties to a contract is either definitely fixed by the instrument itself, or the elements by which such compensation is to be determined are therein definitely determined; proof being required only of the amount of services performed, materials furnished, or work done thereunder, so that a mere mathematical computation applied to such proof will then determine the amount of the recovery. In other words, as in this case, where the contract fixes the unit values of particular classes of work so that all that plaintiff had to do was to establish the amount of work done therefor, which he did by a method devised by the other party to the contract, recorded in books to which the defendant had access, and of the entries in which he had copies, interest is properly chargeable upon the balances. Nothing here is left to speculation and defendants at all times could inform themselves of the exact sums they owed plaintiff. It will readily be seen that a denial of the right to interest in such a case as this is putting a premium upon tire withholding of moneys justly due and an incentive to the prolongation of litigation which might well end in the ruin of a contractor who had advanced large sums of money, the interest alone upon which, if the principal were long withheld, might in itself involve him in business disaster. It will be noticed that in all the cases cited, as in the one at bar, no opinion or expert evidence was required .upon the value of the work or services. The character of the work claimed as herein as extra work was not under the pleadings or the proof at issue, so that the case does not come within the rule laid down in People ex rel. Cranford Co. v. Willcox, 207 N. Y. 743 , 101 N. E. 174 . There, under the terms of the contract involved, the question was-first to be determined whether the relator had done any extra work before the amount of his compensation therefor could be fixed by arbitration, in which case it was held there was no liquidated claim until the amount is fixed by the award.

We find no errors of any kind calling for the reversal or modification of this judgment, which is fully supported by the evidence, and it will therefore be affirmed, with costs. All concur.