Turver v. Field — 13 N.Y. St. Rep. 12

Majority

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Charles H. Turver App’lt, v. George S. Field et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1887.)

Headnote

1. Evidence—Written contract—When paroi evidence to vary can be given.

The rule that paroi evidence may not be given to" contradict or vary a •written agreement applies only to the parties to the written agreement or their privies. One not a party or privy to it is not bound by it, and may c-ntradict it by paroi. One a party to such an agreement suing one not bound by it may in like manner contradict it by paroi evidence.

2. Same—When contract between third parties relevant.

The defendants having taken a contract to do certain work, entered into a written contract with third parties to do a certain portion of said work and these .third parties contracted in writing with plaintiff to construct part of the work they had agreed to do. This action was brought to recover for extra work alleged to have been done by plaintiff at the request of the defendants. The extra work was caused, by certain changes in the manner of construction ordered by defendants’ engineer. II Id, that the contract between defendants and said third parties was admissible in evidence to show that the work was to be done to the satisfaction of said-engineer.

Appeal from an order of the Niagara special term denying a motion for a new trial on a case.

The relief sought in this action is to recover for certain extra work claimed to have been done by the plaintiff upon, the false work for the Cantilever bridge across the Niagara river under the following circumstances:

The defendants were, in 1883, copartners in business under the firm name of “ Central Bridge Company,” and had entered into a contract with the Michigan Central Railroad Company to erect the Cantilever bridge across the Niagara -river at Suspension Bridge. Defendants had contracted with the firm of Dawson, Symmes & Mitchell for the construction of the masonry of said bridge by the latter named firm. The firm of Dawson, Symmes & Mitchell let to the plaintiff, by written contract, the construction of the trestle work (called the false work) on both sides of the river. This contract did not specify whether such trestle work was to be commenced at the top or bottom. The plaintiff alleged and sought to prove a paroi agreement between himself and Dawson, Symmes & Mitchell, made in the presence and with the knowledge and assent of the defendant Field, that the trestle work was to be commenced at the top. This paroi agreement or understanding was attempted to be established as having been made prior to the execution of the written contract, and during the negotiations which resulted in the making of that instrument. The exclusion of the conversation in which plaintiff claimed this arrangement was made constitutes the first exception in the case.

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The plaintiff commenced the erection of this trestle work at the top of the river bank about 170 feet from the water, and, after having used a quantity of material and performed certain work of more or less value thereon, the defendant Field came upon the work, and, as plaintiff claims, caused the progress of it to be stopped and the plan of operations changed, agreeing for himself and Ms co-defendants to pay to plaintiff whatever extra expense such change involved. Field, on the other hand, states that he was upon the work at the time stated by Turver, that he required some changes to be made, but denies that he, for himself, or his firm, promised to pay Turver for such extra work or material as might be necessary. The defendants offered in evidence the written contract and specifications between themselves and the firm of Dawson, Symmes & Mitchell for the construction of the trestle and masonry. The plaintiff objected to this contract on the ground that he was not a party .to it, and had never been possessed of any knowledge of its contents, and it was admitted against his objection and exception.

This forms the second exception in the case, and the two exceptions above referred to are the principal points upon which this appeal is brought. Plaintiff, also, claimed that while the work was under progress and the defendants Dawson, Symmes and Mitchell, and the plaintiff each had' tools and materials on the ground, it was arranged that a watchman be employed and paid by Turver, and each of the three pay one-tMrd of the total amount of Ms wages. The one-third amounted to $33.71. For this sum the jury rendered a verdict for the plaintiff, the defendants succeeding upon the other questions of fact. A motion for a new trial, upon a case and exceptions was made at special term by the plaintiff, which motion was denied.

E. M. & F. M. Ashley, for app’lt; F. Brundage, for resp’t.

The testimony offered by the plaintiff to prove by paroi that Dawson, Symmes and Mitchell, and the plaintiff agreed, in the presence of the defendant Field, that the trestle work should be commenced at the top, was not subject to the rule that paroi evidence may not be given to contradict or vary a written agreement. It is true that the paroi agreement, as offered to be shown, was made during the negotiations which preceded the making of the plaintiff’s written contract with Dawson, Symmes and Mitchell, but to that contract Field was not a party. The rule referred to, applies only to the parties to the written agreement or their privies. Coleman v. National Bank of Elmira, 53 N. Y., 388 . And as Field, not being a

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party to the writing or privy to it, was not bound by it, and might have contradicted it by parol, so the plaintiff is in the like position, as against Field. McMaster v. President, etc., of Insurance Company of North America, 55 N. Y., 222 , 234; Sprague v. Hosmer, 82 id., 466, 470.

But we are unable to see that the testimony offered was material to the issue. It had no legitimate bearing upon the question whether Field agreed to pay the additional expense which the plaintiff might incur by beginning the work at the bottom. The appellant’s counsel argues that if the plaintiff took the contract, expecting to begin the work at the top, that was a good reason afforded why Field should agree to relieve him from loss in consequence of a subsequent change.' The agreement amounts to this: That the testimony, if received, might have furnished ground to infer the existence of a motive on the part of Field, from which motive it might be inferred that he made the agreement. The exclusion of testimony having so remote a bearing only, is not error. Besides, under the written contract, the plaintiff was at liberty to begin the work at the top, if he preferred, unless he was directed otherwise by the engineers in charge, and it does nou appear that the engineers gave him any direction on the subject, except to make the change after he had commenced the work.

If the testimony in question had been offered after Field testified that when he first saw plaintiff on the work he did not know that the contract had been sub-let to him but supposed he was foreman in charge for Dawson, Symmes & Mitchell, it might have been competent for the purpose of contradicting Field in that respect, but the offer was made before that testimony was given. So also if it had been offered after the introduction of the contract between the defendants and Dawson, Symmes & Mitchell, which provided that the work should be done as the engineers in charge should direct. Its rejection at the stage of the trial when it was offered was not error.

The admission in evidence of the written contract between the defendants and the firm of Dawson, Symmes & Mitchell was not error. It was competent to show that by that contract, as well as by the later contract between that firm and the plaintiff, the work was to be done under the directions, and to the satisfaction, of the engineer in charge. The fact that the defendants had thus endeavored by their contract to guard against defective and unsatisfactory work, taken in connection with the testimony of the engineers in respect to the reasons which induced them to order the plaintiff to change his method of doing the work, had a direct and important bearing upon the question

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whether the defendants agreed to pay the extra cost occasioned by the change.

The order should' be affirmed.

Barker, Haight and Bradley, JJ., concur.