p. 46for the substitution of the cherry and the work done thereon, and as that value added to the $975 exceeded $1,000, the contract for the substitution was, in violation of § 64, chap. 410 of the act of 1882. (2) That from a finding that the value of furnishing pine and the work upon it was about $325, it sufficiently appeared in the case that the pine mentioned was worth more than $25.
Before Sedgwick, Ch. J., Freedman and Tritax, JJ.Appeal by defendants from judgment entered upon findings and conclusions made by a judge, in a case tried by consent before him without a jury.
The facts appear ill the opinion.
E. Henry Lacombe counsel to the corporation, and John J. Toionsend, Jr., of' counsel for appellants, on the questions considered in the opinion, argued:
If the change from white pine to cherry wood be deemed work necessary to complete or perfect the particular job of erecting the refreshment-house, such work involved the expenditure of more than one thousand dollars, and not having been done by contract under the regulations prescribed by ordinance, there can be no recovery. “ The work ” ordered, was the cherry woodwork as a complete whole, distinct by itself. “The work” was not the extra labor and materials over and above that involved in white pine wood, but “the work” was the furnishing the material and labor of constructing ab initio cherry wookwork. The price of this woodwork was made up of two factors:The price white pine woodwork would have cost ....... $325 00Additional value of the cherry wood and labor in working it . . . . ' . . 975 00Cost of the work . . $1,290 06
p. 47De Witt, Lockman & De Witt attorneys, and Theodore De Witt and George G. De Witt, Jr., of counsel for respondent, on the questions considered in the opinion, argued:
I. The requisition of April 14, 1884, involved an expenditure of less than $1,000, and is therefore valid as a separate contract. The defendants are in error as to the subject-matter of the requisition as a separate contract. It was not a contract to furnish labor and materials, and-construct in cherry wood the doors, architraves, &c., but a contract to substitute cherry wood for pine. By the first contract plaintiff was required to furnish labor and construct the whole house. And the requisition was to provide for what was not required by the first contract. Under the second contract plaintiff furnished the cherry wood and the additional labor, if any, required to put it up, there being no substitution of labor. It is immaterial that the difference between the cost of construction in the two materials was taken as the measure of the price—the price agreed upon was $975. While plaintiff was paid the whole contract price of $29,740, without putting in any pine wood, the same thing would have been done if a contract for putting in the cherry wood had been awarded to some other person at public letting. It must be considered that the substitution of cherry wood being necessary, the pine woodwork became a dead loss to the city.II. There is no proof of an expenditure exceeding $1,000 for the labor and materials furnished under the requisition of April 14, 1884. 1. If it be claimed that the sum of $975 is not the true expenditure under the second contract, all that can be added is the cost of the pine wood, exclusive of the cost of the labor on it, there having been no substitution of labor. There is no proof, that such cost exceeded $25. The plaintiff testified that the value of the pine and the labor on the pine was about $325. There is no evidence of the cost of either material apart from the labor. 2. The evidence only
p. 48shows the value of the two kinds of material inclusive of the labor. This does not determine the expenditure for any part of the work. 3. As defendants endeavor to avoid liability for a just claim by alleging a violation of statute, they should be required to prove strictly the facts constituting their defense.111. The substitution of cherry wood for pine was necessary and proper. The defendants claim that the use of pine wood constitutes a “perfect form of construction of its kind,” and that the substitution of cherry was not necessary to complete or perfect the job. Plaintiff’s testimony shows that pine wood is subject to very serious objections with regard to its use for purposes where durability as well as ornament are desirable. It might constitute a perfect form of construction of its kind; but so would a house built of unhewn timbers, and such houses have been built. The park commissioners decided that it was not the kind of construction required.was an action upon a contract, for damages, tried by consent without a jury.
The Department of Public Parks had awarded to the plaintiff, as the lowest bidder under section 64 of the Consolidation Act, chap. 410, laws of 1882, a contract for the construction and materials of a public building in a public park. By the contract, the wood to be used in the first floor was pine. The plaintiff was to receive for all work and materials $29,740. Before the wood for the first floor was furnished or any work done upon it in the building, the department, or the officers composing it, considered that cherry wood was, in use and appearance, a better material than pine, and procured an estimate from the plaintiff of how much more than the $29,740, the city would have to pay him if he furnished and set in cherry in the stead of the pine. He, in his calculations fixed upon an amount he would charge for a job of that kind done with cherry, and also fixed upon
p. 49the amount he considered he would receive under the contract for the pine and the work upon it, if he should proceed to complete the contract according to the specifications, and offered to furnish the cherry and put it in, for the difference between these two amounts, that is for $975.
Section 64 commands that when any work is necessary to be done to complete or perfect a particular job, and the several parts of the work shall involve the expenditure of more than $1,000, the same shall be by contract, which shall be awarded to the lowest bidder upon proposals to be made, as provided in the section. An important question in the case is, did the furnishing and putting in the cherry xvood mvolve an expenditure of more than $1,000 for it. It is certain that it involved an expenditure of more than $975; because a part of the consideration to the plaintiff xvas that he xxms to receive the xvhole amount fixed by the contract, as if he furnished pine and the work upon it, and yet he xvas released from the obligation of furnishing ¡fine. The city was to pay the value of the pine in addition to the estimate of $975. There was no finding as to the value of the pine material, but as there was a finding that the value of furnishing pine and work upon it as required by the contract, was about $325, it sufficiently appears in the case that the pine material was worth more than $25. As in my judgment the work in question involved an expenditure of more than $1,000, the contract for it was in violation of the statute, as it was not made with a loxvest bidder, after the publication of proposals, as required by the statute.
There are other serious questions in the case, but xVhat has been already said requires the reversal of the judgment.
Judgment reversed and a new trial ordered with costs to appellant, to abide the event.
Freedman and Truax, JJ. concurred.