Pennell v. Mayor of New York — 39 N.Y. St. Rep. 145

Majority

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Joseph B. Pennell et al., Respt’s, v. The Mayor, etc., of the City of New York, App’lts.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

Contract—Interference with performance—Loss incurred.

Plaintiffs contracted to clear and remove wood and brush from land to be used as a reservoir by defendants for a sum of money and the wood cut, the work to be completed by a certain time, which was done; but, prior to its completion, defendants flooded the land, causing plaintiffs to lose a portion of the wood cut, and increasing the cost of clearing off the biush. Plaintiffs brought an action to recover the value of the wood, lost, and of the increased cost in clearing the land. Held, that defendants had no right to interfere with plaintiffs in the performance of their contract, and were liable for the loss and expense incurred.

Appeal by defendants from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from order denying defendants’ motion for a new trial.

William H. Clark, counsel to the corporation (Henry B. Twombly, of counsel) for app’lts; Kellogg, Rose & Smith, for resp’ts.

—This action arose out of a contract made for clearing wood and brush from the land which was to be flooded by the building of certain dams, under the general plan for supplying New York city with water, authorized by chapter 490 of the Laws of 1883, and the amendments thereto. The plaintiffs had contracted to do the work for a consideration, which consisted of a certain sum of money and of the wood that they might cut, and which it was their right to remove for their own benefit.

The action was brought by the plaintiffs to recover upon two causes of action: 1. To recover the value of about 770 cords of wood cut by them under the contract, but wholly lost to them through the act and fault of the defendants, in flooding the ground cleared by the plaintiffs, with water, during the time the plaintiffs were engaged in the performance of their contract; and 2, to recover the increased cost in clearing off the brush under the samé contract, occasioned by reason of the premature flooding.

The main question presented by the appeal relates to the construction of the contract. It required two things to be done, viz.: 1, the land was to be cleared, and 2, all timber, brush, grass and other vegetable growth thereon was to be removed beyond the limits of the land. The .work was to be done in order of precedence approved by defendant’s engineer, and all the timber and other growth was to be removed or burned, and all the work covered by the specifications was to be done and completed on or before November 1, 1889. As matter of fact the work was completed by the plaintiffs by the time fixed for its completion and was accepted by the defendants, and no controversy exists here in that respect. The litigation in this action is confined to the two causes of action specified.

In respect to them the counsel for the defendants has argued that all parts of the contract should be construed in such a way as to give force and validity to all of them and to all of the language

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used where that is possible, and this is the rule beyond question. But it is equally true that a clause giving an additional and independent right to one party and imposing a corresponding burden upon the other, cannot be interpolated by the court. So surrounding circumstances may be considered to explain or define a something in the contract which required explanation or definition, but they cannot be invoked to add something entirely new. Justice and common sense are to rule in the construction and the interpretation of what is written, but neither can be used for purposes of addition. In no case has the court the right or power to, make a new contract for the parties.

Judged by these rules, the plaintiffs had until November 1, 1889, to do and complete their work, and there being no clause or provision in the contract giving to the defendants the right to flood the ground before that time, they had no right before said time to interfere with the plaintiffs by doing so, and having so interfered months before the said time, they were guilty of a wrongful act, for which, if damage ensued, the plaintiffs have a cause of action.

It has been strenuously insisted that under the clause that all work should be done in the order of precedence approved by the engineer, the defendants’ engineer had the right to order all the wood not only to be cut, but also to be removed, at any time prior to November 1, 1889; and that all that was necessary for that purpose was that a reasonable notice should be given to the plaintiffs. Such a construction of the contract would be a harsh and forced one, but it is not necessary to determine the point for the reason that no such order or notice was given. The letters of April 20th and May 7, 1889, relied upon by the defendants in support of this contention, relate only to the clearing of the land ; and in view of the clear distinction made by the contract itself between that term and the term of removal, the letters cannot be stretched so as to include by implication an order of removal.

The issues were submitted to the jury in accordance with the foregoing views. The record discloses no error which calls for reversal, nor can it be maintained that the verdict is contrary to the evidence, or excessive.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.