Millstone Granite Co. v. Dolan — 61 N.Y. Super. Ct. 106

Majority

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THE MILLSTONE GRANITE COMPANY, Respondent v. JAMES F. DOLAN, Appellant.

Headnote

Contract for the delivery of granite according to plans and specifications ; and also for furnishing extra granite, beyond the contract and not called for in specifications.

The only question in dispute between the parties arises from a construction of the written contract, and a supplement thereto written at its foot, wherein defendant promised to pay extra for all stone work “ that may > not he called for in plans and specifications left at plaintiff’s February 15, 1889.” The court held that the plaintiff fulfilled the contract according to specifications, etc., and also furnished other granite work at request of defendant, for which he was entitled to payment under the supplemental agreement.

The facts and points in the case appear fully in the opinion of the court.

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

Decided May 2, 1892.

Appeal by defendant from a judgment entered upon the report of a referee.

Earley & Prendergast, attorneys and of counsel, for appellant, argued:—

I. The referee erred in admitting evidence of conversations between the parties occurring before the written contract, all of which was incompetent, and all admitted under objection and exception of defendant. It was

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upon the evidence thus improperly admitted that the referee based his finding in plaintiff’s favor that those exhibits were the specification of the granite plaintiff was to furnish, and this evidence thus materially prejudiced the defendant. It was error to admit it, because against the well settled rule of law that all prior and contemporaneous parol negotiations become merged in a written contract when, made, the latter being entire and covering the undertaking of both parties in respect to the whole subject matter. A writing when once made in this way, must not be contradicted or varied or suffered to be affected by parol. And particularly so when the instrument is under seal. Wilson v. Deen, 74 N. Y., 531 ; Eighmie v. Taylor, 98 Ib., 288 ; Marsh v. McNair, 99 Ib., 174; Snowden v. Guion, 101 Ib., 458; Englehorn v. Reitlinger, 122 Ib., 76.

II. The referee’s decision is against the evidence and the weight of evidence. Notwithstanding that John P. Leo’s plans and specifications were those mentioned in the written contract, and that the referee finds that same were the plans and specifications figured at Millstone on February 15, and left at plaintiff’s office on that day, the referee deprives the same of all binding force and permits plaintiff an extra recovery for granite required by such plans and specifications. In so doing, he goes against the plain letter of the contract. The only evidence needed in the case outside of the writing was evi- . dence to identify what plans and specifications were figured on, and what left at Millstone on February 15, 1889. When those were shown to be the plans and specifications of Mr. Leo, plaintiff could not go outside of same and show an understanding that other papers or specifications were to apply. To permit plaintiff to attempt to show this was wrong, but the evidence as given does not prove or establish the plaintiff’s contention. It appears that defendant, having made contract for the stone work of the armory, and being solicited by plaintiff’s

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superintendent to take an estimate for the cut stone or granite from plaintiff came up to Millstone Point on February 15,1889, and gave to plaintiff’s officers plans and printed specifications to figure and make estimate upon. Superintendent Davis then took such plans, and together with Ladd, plaintiff’s draughtsman, spent several hours from one p. M. till evening figuring, taking sizes for granite shown thereby, and calculating the number of feet of granite required, and the cost to plaintiff of the cutting, and used four sheets of paper in making pencil memoranda of sizes, number of feet and expense to plaintiff of cutting. Davis and Johnson then went in another room and out of Dolan’s hearing, and made some calculations, and then Johnson says: “I came into the other room and told him or gave him that writing which you have here after some conversation.” The writing so given to Dolan is Defendant’s Exhibit 1. It is addressed to Dolan, dated February 15,1889, and signed by Millstone Granite Co., Chas. S. Johnson, Treas., and by it the company agrees to cut, furnish and deliver all the granite work complete for the 22d Eegt. Armory, according to plans and specifications made by Mr. J. P. Leo, architect, for $12,050. Dolan took that writing and returned to New York, leaving the plans and specifications he had brought, and which ever after remained with the company until produced by it on this trial. A few days after, Dolan being again at plaintiff’s office, the contract set forth in the complaint was signed in duplicate, and duplicates exchanged, which contract was, as will be noticed, in precisely the same terms as the writing or estimate, given to Dolan by plaintiff previously, providing for plaintiff to furnish all the granite according to Leo’s plans and specifications, the ones figured on at the company’s office on February 15, for $12,050. Thereupon the plaintiff’s granite was furnished in 18 different shipments, covering a period extending from February 15, 1889, to January 14,1890. When the job was over the aggregate of the

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bills of shipments at the charges made by plaintiff upon the bills, made a little over $16,000. And then, notwithstanding plaintiff had agreed to furnish all the granite for $12,050, it took the bills for some of the last shipments, making a total of $4,238.78, and made a claim that same was. extra, because, as it claimed, the stones charged for thereon were not mentioned upon the four pencil sheets used in making memoranda before the contract was made. Defendant refusing to pay any more than the contract price, plaintiff sued for the sum so claimed as extra, and the referee sustained their claim upon a finding; that the specifications and plans mentioned in the contract referred to the stones listed on the four pencil sheets, and had been accepted by defendant as showing the granite to be furnished under the contract. This finding, it is submitted, is against the weight of evidence. There is no evidence anywhere in the case of any request of the defendant for any extra stones, and the plaintiff’s right to recover is grounded solely on the claim that it furnished more stones than enumerated on the four pencil sheets, and for the surplus should be paid extra. While defendant’s claim is that as plaintiff furnished no more stone than was called for by the plans and specifications made by Mr. Leo, with which he had agreed to comply, plaintiff has not earned any more than the contract price, subject to the deductions for certain stone which plaintiff left out, and which defendant had to furnish himself. It will be perceived that the case turns on the question, what were the plans and specifications referred to in the contract, plaintiff agreeing therein to furnish all the- granite required by same. Upon this question we renew the contention we made under the first point, that the negotiations and transactions occurring prior to the contract cannot be considered or be permitted in any way to govern the rights of the parties, and that evidence of the same was improperly admitted.

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Cannon & Atwater, attorneys, and Frank Bergen and Henry G. Atwater of counsel, for respondent, argued:—

I. There is no statement in the case as made and settled that all the evidence given upon the trial is contained within it, and in the absence of such a certificate the general term will not review the case upon the facts. This rule is so well settled and has been so often enforced by this court, that no extended argument on it is needed, but a few of the recent authorities are given : Davis Sewing Machine Co. v. Best, 50 Hun, 76 ; Wellington v. C. C. & I. C. Co., 52 Ib., 408; Murphy v. Board of Education, 53 Ib., 171; Brayton v. Sherman, 28 St. Rep., 854 ; Porter v. Smith, 107 N. Y., 531 ; Halpin v. Phenix Ins. Co., 118 Ib., 165; Aldridge v. Aldridge, 120 Ib., 614; Goodrich v. Gillies, 42 St. R., 321.

II. None of the exceptions taken on the trial call for a reversal of the judgment. It may be well to point out one or two other facts before proceeding to consider the exceptions on which the defendant relies. (1.) One of the sheets of the drawings for the armory which Dolan took with him to Millstone Point showed a tower of considerable dimensions, and when he was pointing out to the employes of the company what parts of the building were to be granite on which he wished the company to estimate, he stated that they need not figure on anything above a point just below the tower. All of the extra material charged for in the bill of particulars, was used in constructing the tower, and of course was not included in the primary contract. (2.) The principal part of the building was to be of brick, the water table, trimming’, etc., to be of blue stone and granite. The parts of the plans taken by Dolan to the company’s office on February 15 did not indicate what parts of the building were to be of granite, so that persons, although skilled in the business of estimating, could ascertain

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from them, even approximately, what parts were to be of granite; nor did the printed specifications supply the information. The four pencil sheets show that 12,725.-21 cubic feet of granite were required by the primary contract. (Plaintiff’s exhibits “ F,” “ G,” “ H,” and “ I ”.) Under the supplemental contract 2,420.8 cubic feet were furnished, making in all 15,140.01 cubic feet actually put into the building. To he strictly accurate it should be s^iid that 1,500 cubic feet were omitted from the sally port in actual construction by agreement, although shown on the plans, and a few feet were also omitted from the tower by consent because of a reduction in the size of the stone shown on the plans. Now it appears in the case that parties of long experience in making estimates could find no such quantity of granite to be required by the plans and specifications. Peter Nolan, a man of thirty years’ experience, made an estimate on the plans on December 21, 1888, for the purpose of obtaining a contract for the work, and could only find that 11,958.9 cubic feet were required. He says he included in his estimate all the granite to be furnished under the plans and specifications the best he could understand them. He says he found the plans and specifications indistinct and obscure. Mr. Dutton and Mr. LePoidevin also found the plans to be indefinite, and Ladd and Johnson testified to the same effect. The issue in the case is so largely a question of fact, which has been finally settled by the referee, that there seems little, if anything, open for discussion here. The defendant’s theory of the case, as indicated by the record, is based on assumptions that are plainly untenable. He insists that the contract of February 15,1889, referred to all the plans for the building and to the printed-specifications. The fact is, however, that only a part of the plans were taken to Millstone Point on February 15, and the printed specifications were not seen on that day by the officer of the company who made the proposition

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and afterwards signed the contract. Besides, the plans themselves were so indefinite that the quantity of granite required could not be estimated from them within four thousand feet of the real quantity needed, and the specifications referred to in the contract were the four pencil sheets, not the printed document. Again, it will be remembered, that when Dolan presented a draft of a contract to the company for execution a few days subsequent to February 15, 1889, containing a clause requiring the company to furnish “ all the granite work,” the company’s representative required him to strike out those words, and insert words which required the company to furnish granite “ per specifications and plans as figured on at the office of the Millstone Granite Company at Millstone Point,” on February 15,1889, for the avowed and well understood purpose of limiting the quantity to that indicated on the four pencil sheets.

The action is for the price of granite, worked, sold, and delivered by plaintiff to defendant. A construction of the written contract, will decide the dispute between the parties. By that, the plaintiff agreed that they would work for the Twenty-second Regiment Armory building, on trucks, agreeably to the drawings and specifications made by John P. Leo, architect, and signed by the said parties, and. hereto annexed, in a good, substantial and workmanlike manner to the satisfaction and under the direction of the said John P. Leo, and also shall and will find and provide such good, proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient for the completing and finishing, all the granite work per specification and plan, figured on at the office of the company at Millstone Point at this date, of said building mentioned in the specification, for the sum of $12,050.

The appellant contends that for the price named the plaintiff was to furnish all the granite work 'disclosed by

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the drawings and specifications of John P. Leo, architect. This is not correct, for, by the contract, work upon the granite is to be done in accordance with such plans and specifications, but the granite work to be furnished was such as was described in specification and plan, figured on at the office of the company. In fact there had been such specification and plan figured on at the office, and they were not the same as the drawing and specifications of Leo, being but a part of the latter. The figuring was upon four sheets of paper.

The evidence in the case sustains this construction of the contract, and shows its reasonableness. There was in the contract made a reference to extra work. When the granite had been partly delivered, the defendant agreed in writing “to pay for all extra stone work that has not been called for in plans and specification left at your office, February 15, 1889, at time of making contract, etc.”

The plaintiff fulfilled the contract to furnish granite according to the specification figured, and also furnished other granite work at request of defendant. The defendant contested plaintiff’s right to recover this extra granite, on the ground that the granite work was called for by the plans and specifications of John P. Leo. We have construed the contract otherwise. The plaintiff was entitled to recover upon the balance due under the contract and for the extra work. .

Judgment affirmed, with costs.