Preston v. City of Syracuse

Prior to December, 1892, tbe board of education of defendant entered into a contract with Isley & Dixon for tbe construction of a brick school bouse on Montgomery street. The building was partially constructed, and then, in December, 1892, tbe contractors abandoned tbe contract. On tbe 31st of December, 1892, tbe board of education entered into a contract with tbe plaintiff to complete tbe mason work of tbe building in accordance with tbe plans and specifications of tbe architects for .a certain sum. In the specification was the following clause: “Note.— Building at present up to first floor joists. All outside brick walls to be taken down to water table.” There was also the following clause: “ Particular care must be taken of all tbe finished work as tbe building progresses, which work must be covered up and thoroughly protected from injury or defacement during tbe erection and completion of tbe building.”

Tbe time at which the work under the plaintiff’s contract should be commenced was not specified in tbe contract. Soon after tbe contract was made tbe plaintiff applied to tbe architects for leave to go on, but, by reason of the weather and the impracticability of then ascertaining to what extent tbe walls already up might be injured by the frost, it was deemed best to postpone the work until spring, and tbe work was not commenced until the latter part of March. It was then discovered that it was necessary to take down to some extent the inside walls and rebuild them before the plaintiff could proceed to the completion of the building from the point to which it was completed at the time the contract was entered into. It was shown that such inside Avails had become defective by reason of the action of water and frost during the winter. When the situation was ascertained the plaintiff was directed by the board of education and by the architects to take down and rebuild the defective inside walls. This he did, and in this action seeks to recover the expense in labor and materials of doing it. Tie showed the expense to be $600.50, and that no part had been paid. On the part of .the defendant the value of the work and materials was shown

It was quite apparent, as the court said, that the defective condition of the inside walls was due to fhe unprotected condition of the work during the winter. The claim of the defendant is in effect that it was the duty of the plaintiff immediately upon the execution of his contract to investigate and see if the work already done was properly protected, and to remedy any defect in that line. The contract did not impose that duty on him. The clause as to care of finished work related to his own work to be done under the contract and not to what had been previously done by some one else. The architect called as a witness for the defendant testified that “ when he (plaintiff) took that contract he was to tear down the outside wall of the building from the first floor joists down to the water table and relay it. Everything else was all in good shape up to that point, but the outside was not laid right. "We put it in the specifications that the outside wall would have to be taken down to the water table and relaid. In other words, the other walls looked all right up to that time. Q. That was the understanding when you made the contract ? A. Yes, sir.” Nothing seems to have been said to plaintiff about protecting the work of his predecessor. The architects had as good or better means than the plaintiff had for knowing whether the walls were or were not adequately protected. The court did not, we think, err in holding that the plaintiff was not responsible for the neglect of the original contractor or of the architects in not having the walls properly protected.

Clearly the work in question was outside of the work for which the price named in the contract was to be paid.' The defendant, however, claims that the plaintiff cannot recover because the value of the extra work was not before suit determined by the architects or by arbitrators in case of dispute as to the value, in accordance

The architect Merrick testifies that it was practically impossible to estimate beforehand how much the cost or value of the change in question would be. According to the evidence of the plaintiff, which is not denied, he, at the request of the architects, kept track of the material and labor furnished for the particular work in question, and when the work was done he made, out a bill of it and delivered it to the architects in August. This suit was commenced in December. There is no evidence that the amount was disputed, but the position of the defendant or those representing it was that they were not liable at all. The plaintiff may well have believed that he had done all that was required in regard to fixing the amount. Besides, at the trial at the close of the evidence, the only question then raised was that the plaintiff could not recover by reason of his neglect to protect the walls .from the date of his contract. On the motion for nonsuit the question that the amount had not been properly ascertained was not specifically raised.

We are inclined to the opinion that, under the ruling in the case of Seward v. City of Rochester ( 109 N. Y. 164 ), the obtaining of an adjustment of the value by the architects or by arbitration was not a condition precedent to a right of action. Assume, however, it was, there is evidence tending to show a waiver. So that the motion for a nonsuit was properly denied, and as at the close of the case no point was made as to this and no request to go to the jury on the subject, the defendant will be deemed to have assented to the disposition by the court of any question that may have existed on the subject.

Hardin, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.