Devlin v. Mayor of New York — 11 N.Y. Super. Ct. 337

Majority

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Charles Devlin v. The Mayor, &c., of the City of New York.

Headnote

The plaintiff, hy a contract in writing between him and the defendants, agreed “ to furnish at his own proper expense and cost all the necessary materials for and to excavate and build a good, firm, and substantial sewer in 21th street,” Ac., and by subsequent clauses in the contract the prices to be paid to him “ for all the excavation whether hard pan, quicksand, caves, or otherwise,” and “for the blasting and removing of rock” are distinctly specified. It appeared upon the trial that the sewer in question had been built, and it was admitted that the plaintiff had been paid by the defendants all that he was entitled to receive by the terms of the contract, but his counsel insisted that the plaintiff was entitled to demand and recover an extra compensation for excavating a material of unusual hardness, which had never been found before, and was neither common excavation nor rock, and which was not in fact contemplated by the parties when the contract was made, and he offered evidence to establish the facts so alleged. The court excluded the evidence and dismissed the complaint.

Meld, that the plaintiff was bound by the terms of his contract, and that the evidence offered, being plainly inconsistent with its necessary construction, was properly excluded.

Judgment for defendants, dismissing complaint, with costs.

(Before Oakley, Ch. J.; Duer and Slosson, J.J.)

February 15; February 24, 1855.

Appeal by tbe plaintiffs from a judgment dismissing tbe complaint, with costs.

Tbe complaint was for work and labor performed, and materials furnished by tbe plaintiff, at tbe request of tbe defendants, in tbe excavation and completion of a common sewer in tbe city

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of New York, and averred that tbe same were reasonably worth. $10,000, for which sum judgment was demanded. The defence' was, a payment in foil. The canse was tried on the 10th of October, 1855, before Oakley, Ch. J., and a jury.

The counsel for the plaintiff, in opening the cause to the jury, stated, that the action was brought to recover the value of blasting and-excavating certain material, commonly known as bastard granite, encountered in the construction of a sewer in Twenty-seventh street, in the city of New York, built by the plaintiff, in pursuance of and under a contract with the defendants; that the substance encountered was of a kind not contemplated by the parties to the contract, at the time of the execution thereof, and therefore not embraced in it, and that the plaintiff would claim the value of the labor incurred in such excavation over and above the price specified in the contract, which contract price for rock excavation, and for building sewer, and furnishing materials therefor, had been paid to the plaintiff.

The contract to which the counsel referred was then produced, and read in evidence.. It was dated on the 15th of June, 1850, and was executed by the plaintiff, and by the Croton Aqueduct Department, on behalf, and in the .name, of the defendants. By the terms of the contract, the plaintiff agreed “ to furnish at his own proper cost and expense, all the necessary materials for, and to excavate and build, a good, firm and substantial sewer, in Twenty-seventh street;” describing particularly its length and other dimensions, and, in subsequent clauses, the prices to be paid to him for “all the excavation, whether hard pan, quicksand, caves, or otherwise,” and “for the blasting and removing of rocks,” are expressly stipulated. The other provisions in the contract, which are very specific and minute as to the mode of performing the work, and the nature and the quality of the materials to be furnished, are omitted, as having no bearing upon the questions raised and decided.

The counsel for the defendants then moved to dismiss the complaint, on the ground, that it appeared by the opening of the plaintiff’s counsel, that the plaintiff had received the full price stipulated by the contract, to be paid to him for constructing the sewer, and that the terms of the contract covered and included all excavations, of whatever substance, at the price fixed in said contract.

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The counsel for the plaintiff then offered to prove that the plaintiff had done the work and furnished the materials in the complaint mentioned, and that they were worth the sum therein mentioned.

The court excluded the evidence, and the counsel for the plain-' tiff excepted. ■

The counsel for the plaintiff thereupon offered to prove, that in the course of the work, the plaintiff excavated a large amount of material of extraordinary hardness, which was not rock, but a foreign substance deposited in a bed of rock, and neither common excavation nor rock. Also, that this material had never been found upon this island, and existed at the place in question in large quantities. Also, that the Croton Aqueduct Department fixed the price of two dollars for rock excavation, in reference exclusively to the expectation, that only the ordinary rock of the island, a substance entirely different from the substance in question, would be found in the excavation. Also, that the substance in question, was not, in point of fact, contemplated by the parties at the time of making the contract, and the counsel for the plaintiff claimed to recover an extra compensation for the unexpected labor in excavating a material of unusual hardness.

The court excluded the evidence, and ordered the complaint to be dismissed.

A. J. Willard, for the plaintiff,

now moved for a reversal of the order, and a new trial.

B. J. Dillon, counsel for the corporation, contra.

By the Court.

It is very possible that the plaintiff may not have received a full compensation for the work that he performed, and that his contract with the corporation was, in the result, a losing bargain, but if so, he should have applied for relief to the equitable discretion of the Common Council. To afford him relief upon the evidence before us, is beyond the power of a court of justice, whether of law or equity. He performed the work, for the value of which this action is brought, in excavating a sewer which he had bound himself to excavate and build under a special contract. It is by the terms of that con

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tract, therefore,, that his right to the compensation which, he. now seeks.must be determined; and that he has received.the whole-sum that by the terms of this contract was agreed to-be paid to . him for the work it required him to perform, was, upon the trial, expressly admitted. The. defence of payment was therefore established, unless it can be shown that the work for which an additional sum is now demanded, was not embraced within the terms of the contract; in other words,- was no -part of the work that the contract bound him, to perform — and this has not been shown, and we find it impossible to say.

The words of the contract are free from a shade of obscurity or doubt; broader and plainer could not have been, used, and hence there is no pretext for saying that parol evidence could be introduced to vary and restrict the meaning which they directly and necessarily suggest. The plaintiff was to- excavate the sewer, and for a stipulated price bound himself to perform “ all the excavation,” with the addition of words, that could only have been inserted for the purpose of removing any possible doubt as to the extent of his obligation — the words “ whether of hard pan, quicksand, caves, or otherwise:” the words “or otherwise” being plainly equivalent to “or any other substance whatever.” He therefore took upon himself the risk of meeting with unknown substances of “unusual hardness,” and he undertook, not by implication, but by express words, to excavate — that is, dig them out and remove them. He has performed the work, and has been paid for its performance, and we are now asked, without a suggestion of fraud or mistake, to reheve him from his contract, so as to enable him to recover a larger sum than that which he agreed to receive. Our short reply is, we have no such power; the law has not given it to us, and we shall not usurp it.

Although we .deem it needless to sustain our opinion by a reference to authorities, there is a decision of the Court of Appeals, to which, as not merely applicable, but controlling,- it seems proper that I should advert. The case, that of Sherman v. The Mayor, &c., of New York, (1 Comst. 316,) in all its material circumstances, except that the words of the contract were less explicit and full, is not to be distinguished from the present. The plaintiff contracted with the corporation to furnish all the materials and labor necessary to complete the excavation and refilling of

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a trench of specified dimensions, for water-pipes, and the corporation-agreed to pay him for “executing the digging and refilling” seven cents per cubic yard. A large portion of the work was through hard pan, which was proved before the referees who heard the case, to be worth seventy-five cents per cubic yard; another portion was through rock, and was proved to be worth $1 per cubic yard; and it was also proved that seven cents was the lowest price for excavating common earth. The court, nevertheless, held that the plaintiff could recover nothing beyond the contract price, and in delivering its judgment, Jewett, J., said that “the contract under the head ‘excavation’ called-for the opening of a trench of the prescribed dimensions, through whatever substances should be-met with, on the line agreed upon, and that full compensation for this work was agreed upon, under the terms ‘for executing the digging, seven cents per cubic yard,’ ” — and he added, “that as the price of the work was thus fixed by the written contract, the -referees had erred in admitting parol evidence to show its value.”

According to this decision, the plaintiff in the case before us, would have been limited to the price he agreed to receive, had he bound himself by the contract to do no more than “excavate the sewer:” even upon this supposition his claim for an extra compensation must have been denied. Here, that which the word “excavating” implies, is in terms expressed.

My brethren, therefore, entirely agree with me, that as the object of all the additional proof that was offered on the trial, on the part of the plaintiff, was to give to the contract of the parties a different meaning from that which its terms plainly and necessarily import, it was all properly rejected.

It may be true as the-learned counsel for the plaintiff endeavored to convince-us, that, by'the rules of the civil law, his client, under the circumstances that were offered to be proved, would be entitled to the extra compensation that he claims, but we conceive that this is not a case in which the rules of the civil law can, with any propriety, be invoked- to aid our decision. The doctrine of the common law, that binds men to the faithful performance of their contract, according to their manifest and undeniable import, which, when there is no room for the imputation of fraud or mistake, is too firmly established to be now superseded or shaken by the equity, more apparent than real, of a foreign jurisprudence.

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When it is uncertain whether a contract fairly made, will end in a profit or loss, the parties take upon themselves the risk of the result, and neither has any title to be relieved at law or in equity upon the mere ground that his expectations were disappointed. There can be no injustice in holding that he who would have retained all the profits, however largely they exceeded his calculations and hopes, must be content to bear a loss that he failed to anticipate.

The defendants are entitled to a judgment dismissing the complaint, with costs. ' .