Case v. Phœnix Bridge Co. — 55 N.Y. Super. Ct. 25

Majority

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MARGARET A. CASE, Respondent, v. THE PHŒNIX BRIDGE CO., Appellant.

Headnote

Conditions precedent, matter in nature of-—Sufficiency of pleading as to— Damage, sufficiency of allegations as to.

It was objected against the complaint in this action that no demand on, or notice to, defendant to perform the duty resting on it under the contract in the complaint set forth, was alleged, and therefore facts sufficient to constitute a cause of action were not alleged. Held, that conceding such demand or notice should have been made or given, they should have been so made or given only because they were in the nature of conditions precedent; and that as such conditions precedent, they were sufficiently alleged in the complaint by the averment therein of the due performance by plaintiff of all the conditions of the contract on her part.

It was further objected to the complaint, that it showed no actual damage to the plaintiff from the acts complained of. The complaint in effect alleged that plaintiff and the force she had under pay to perform the work she coijtracted to perform upon certain materials and a certain structure, which materials the defendant contracted to furnish as rapidly as the progress of the work required, and which structure was to progress as fast as possible, were kept by the act and neglect of defendant, waiting an unreason aide length of time for such materials and structure, and that she was obliged to pay her men for their working time in fifty-five days more than she would have been had defendant performed the conditions of the contract on its part, to her damage of $4,290. Held, sufficient.

Before Sedgwick, Ch. J., and Freedman, J.

Decided June 23, 1887.

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Appeal from interlocutory judgment entered upon order overruling defendant’s demurrer to one of the causes of action in the complaint, and from such order.

The cause of action demurred to was thus set forth : “ That at all the times hereinafter mentioned the plaintiff was, and still is a resident of and engaged in business in the city of Brooklyn, in the state of New York, and that the defendant was, and that it still is a corporation duly organized under the laws of the state of Pennsylvania. That on or about April 24, 1884, this plaintiff and the defendant entered into an agreement whereby this plaintiff agreed to sink about one hundred and fifty-four wrought iron piles about ten feet deep into the sand, for an iron pier at Cape May, in the state of New Jersey, and to place and secure iron transverse girders on top of the piles, and to put in place the transverse and lateral rods and struts designated in the plans and specifications which accompanied said agreement, and that all such work should be. performed within thirty days after iron sufficient therefor had been delivered, provided the iron so delivered was in proper form and adapted to said work, and was delivered in sufficient quantity, and that the floor of the pier was laid as fast as required for the erection of the iron work; and, whereby, the defendant agreed to pay to this plaintiff at the rate of twenty-seven dollars for each pile sunken, and to deliver all the iron so called -for by said agreement, plans and specifications, at the site of said pier, as rapidly as the progress of the work required, and to furnish a competent engineer to furnish lines and levels, and to lay the floor of the pier as fast as it was practicable, and to make payments to this plaintiff twice each week as the work progressed. That the plaintiff duly performed all the conditions of said contract on her part, but that defendant failed to deliver the iron called for by said contracts, plans and specifications, in proper form or adapted to said work or in

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sufficient quantity, or as rapidly as the progress of the work required, and also failed to lay the floor of the pier as fast as it was practicable to lay it, and that in consequence of such failures this plaintiff was delayed in the performance of her contract fifty-five days more than she would have been, had the defendant performed the conditions of said contract on its part, and was for said fifty-five days obliged to keep a number of men and her tools and machinery ready to engage in said work, and to pay said men for their working time in said fifty-five days, to the damage of this plaintiff forty-two hundred and ninety dollars.

Shearman & Stirling attorneys, and Thomas G. Shearman of counsel for appellant, argued:

L Neither demand nor notice is alleged in this case.

II. It is abundantly settled by the decisions that one who has agreed to perform any act other than the mere payment of money is not bound to perform without a demand, unless a specific time and place are fixed for the performance, without any dependence on contingencies, or unless, in some other way, the intention to require performance, without demand, is clearly manifested. Boutwell v. O’Keefe, 32 Barb., 434 ; Moore v. Hudson River R. R. Co., 12 Ib., 156; Lutweller v. Linuell, Ib., 512; Lobdell v. Hopkins, 5 Cow., 516 ; Connelly v. Pierce, 7 Wend., 129 ; Bach v. Owen, 5 T. R., 409.

HI. The case is clearly Avithin the well settled rule that “ whenever the fact upon which the defendant’s liability depends lies peculiarly within the plaintiff’s knowledge, notice thereof ought to be given by the plaintiff to the defendant, and the giving of such notice must be averred in the complaint.” Comyn's Digest, Pleader, C. 73; 2 Tillinghast & S. Practice, 94: Vyse v. Wakefield, 6 Meeson & Welsby, 442 ; affirmed 7 Ib., 126 ; King v. N. Y. Central, &c., R. Co., 66 N. Y., 181 , 188.

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IV. This cause of action is also defective, because it fails to show any actual damage accruing to the plaintiff from the acts complained of. The plaintiff must state facts which raise at least a presumption that he has some interest in the performance of the particular covenant upon which he brings suit, and that he has suffered actual damage by the breach. Gould v. Allen, 1 Wend., 182 ; Rider v. Pond, 28 Barb., 447 . For the purpose of showing that the plaintiff was injured by the defendant’s delay, the complaint avers “ that in consequence of such failure, this plaintiff was delayed in the performance of her contract.” But this is a mere conclusion of law, unsupported by any facts, and amounts to no more than a piece of blank paper. The words “ in consequence of ” are just like the word u thereby,” which is unquestionably a prelude to a mere conclusion of .law and a nonentity in pleading. Smith v. Hayes, Irish Reports, 1 C. L., 333, 335. The complaint is not helped out by the general allegation that this act was ■ “ to the damage of this plaintiff.” That also is a mere .legal conclusion and amounts to nothing in a pleading. McKyring v. Bull, 16 Ad Id, 297; Buffalo v. Halloway, 7 Ib., 493 ; People v. McCumber, 18 Ib., 515: Merritt v. Millard, 5 Bosw., 625 ; Walter v. Lockwood, 23 Barb., 233 ; Baldwin v. Buffalo, 29 Ib., 401; Lienan v. Lincoln, 2 Duer, 670 ; Schenck y. Naylor, Ib., 675.

Edward S. Clinch attorney and of counsel for respondent, argued :

I. The allegation of performance by the plaintiff is in the exact language required by the Code (§ 533).

H. The plaintiff was not bound to give notice. The agreement on the part of the defendant was absolute- and unqualified, and the defendant was bound to perform without notice, and if it lacked knowledge it was bound to inquire. Board of Water Commissioners v. Burr, 56 Ad 2d, 667; Allamon v. Mayor, 43 Barb., 37 ; 2 Chitty, 329.

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III. On the argument at special term, the defendant claimed that the complaint does not show that the plaintiff has sustained any damage. The complaint alleges that in consequence of the failure of the defendant to perform its contract, the plaintiff was for fifty-five days obliged to keep a number of men and her tools and machinery ready to engage in said work, and to pay said men for their said working time $4,290. The plaintiff was obliged to do a certain thing” means that under compulsion she did that thing, and if this part of the complaint means anything at all, it means that the plaintiff, by reason of the defendant’s failure to perform, was obliged to keep her men, tools and machinery ready for work, and to pay under this compulsion, for their working days, to her damage. But even if no consequent damage was shown, the contract being a valid one, the plaintiff on the trial, on showing a breach by defendant, would have been entitled to recover nominal damages. Devendorf v. Wert, 42 Barb., 227 ; Mills v. Gould, 42 Super. Ct., 119.

The part of the complaint demurred to, averred that the plaintiff and defendant entered into an agreement whereby plaintiff was to sink 154 iron pipes into the sand for an iron pier, and to do other work with iron, in and about parts of the structure of the pier; that the defendant agreed to pay to the plaintiff $27.50 for each pile sunken, and deliver all iron, which the plaintiff was to work upon under the contract, at the site of the pier, as rapidly as the progress of the work required, and to lay the floor of the pier as fast as practicable; that plaintiff duly performed all the conditions of this contract on her part, hut defendant failed to deliver the iron as required by the contract(C in proper form, or adapted to said work, or in sufficient quantity, or as rapidly as the progress of the work required, and also failed to lay the floor of the pier as soon as it was practicable to lay it; and that in

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consequence of such failure the plaintiff was delayed in the performance of her contract fifty-five days, and was" obliged to pay men as for their working time, in waiting, &c., to her damage, $4.290.

The first objection to this is that it does not aver that performance by defendant was demanded by plaintiff, or that notice was given to defendant by plaintiff that the state of the work required performance by defendant of its obligation under the contract. It is not necessary to decide now that such demand or notice should have been made or given. If they should, they were in the nature of conditions precedent to liability on the part of defendant. Under section 533 of the Code of Civil Procedure, in pleading the performance of a condition precedent in a contract, it is not necessary to state the facts' constituting performance, but the party may state generally that he duly performed all the conditions on his part, and in this complaint the plaintiff has averred due performance of ail conditions of the contract on her part. This objection cannot be sustained.

The other objection is that the complaint does not show any actual damage to the plaintiff from the acts complained of. In obeying section 519, by liberally construing the allegations of the complaint with a view to substantial justice between the parties, we may find in the complaint what will apprise the defendant that the plaintiff intends to prove that after she had duly proceeded with the work, as called for by the contract, she notified the defendant to furnish more pipe and iron, with which she could further proceed to perform her contract; that it did not furnish these within a reasonable time, but kept her and the force she had under pay waiting for an unreasonable time for the pipe and iron; and that she was obliged to pay so much more wages than she would have been if the defendant had performed its obligation within a reasonable time.

The judgment and order should be affirmed with costs.

Freedman, J., concurred.