
    Mansfield v. New York Central and Hudson River Railroad Company.
    
    
      (Court of Appeals,
    
    
      Filed April 13, 1886.)
    
    1. Contract to erect elevator—Employer to do work before contractor begins—When time of contractor begins to run.
    Where plaintiff and his partner contracted to erect an elevator within five months, and to commence work within five days after notice by defendant’s engineer of the completion by the defendant of the foundation, with $500 for each day gained, and $500 forfeit for each day exceeding the five months. In an action for damages caused by delay through defendant not completing the foundation before giving notice, all proof tending to show such cause of action was excluded by (he court on the ground that there was no covenant in the contract to have the foundation ready: Held, that the defendants were bound to prepare the foundations so as to have them in a condition to enable their contractors to prosecute their work to the utmost advantage and economy before giving the notice which set the time limited for its completion in motion.
    2. Same—Waiver.
    As the contrac.or did the work under protest, his act in commencing the same within five days after receipt of the notice in question did not constitute a waiver.
    
      8. Same—Effect of the assignment of partner’s interest.
    Assuming that the assignment made to plaintiff of his partner’s interest was not valid, it did not constitute a bar, as he was entitled to his damages thereon.
    4. Same—Evidence of judgment reforming assignment competent.
    A judgment roll offered by plaintiff in an action brought by him against his partner to compel him to reform said assignment obtained after this action was brought is competent evidence.
    Appeal from judgment of general term supreme court, second department, affirming judgment in favor of defendant.
    
      
       Reversing 38 Hun, -665, mem.
      
    
   Ruger, Ch. J.

This action was brought to recover the damages arising from a breach by the defendant of a contract made by it on April 5, 18Y6, with Gill & Mansfield for the construction of an elevator. The complaint alleges, as a breach, that the defendants failed to have the foundations ready for the erection of the elevator at the time they were required to commence work for its construction, and claim damages therefor by reason of increased expense in doing the work and supplying materials, and loss of gain or profits arising from the delay occasioned by the want of readiness on the part of the owners.

Upon the trial all proof on the part of the plaintiff tending to show the cause of action set out in the complaint, with the damages arising therefrom, was objected to by the defendant, and excluded by the court, under the plaintiff’s exception. The decision of the court seems to have been based upon the assumption that there was no covenant on the part of the defendant to have the foundations ready at the time of giving notice thereof, and such seems to have been the opinion of the general term affirming the judgment.

An examination of the terms of the contract is necessary to determine the correctness of the views taken by the courts below. That instrument provided, among other things, that Gill & Mansfield should furnish the materials and perform the work in erecting the superstructure of an elevator over the water upon piers in the Hudson river, between Sixtieth and Sixty-first streets, in New York, and should finish the same within five months from the time of the commencement of the work, and should receive, as their compensation therefor, the sum of $331,500, and the further sum of $500 per day for each day less than that time occupied in its construction. It was further provided that they should pay the defendant, as liquidated damages,- the sum of $500 per day for each day in excess of that time during which the completion of the work should be prolonged. With respect to the time of the commencement of the work it was provided:

“The said parties of the first part hereby further agree to commence the erection of the elevator within five days' after notice from the engineer that the foundations are ready, and to complete the same, ready for use of all the lofting elevators, within five months thereafter.” “Whenever the word ‘ engineer ’ is used in the specifications, reference is had to the engineer in chief in charge of the work for the party of the second part to this contract.”

It seems to us that the courts below have mistaken the plain reading and import of this contract. It is true that there is no express provision in it requiring the foundations, or any part of them, to be ready at any particular time. So neither is there any such provision requiring any foundations at all to be built by the owners; but the clearest implications arise from the language of the agreement, and its avowed object and intent, that the property of the owners upon which the building was to be erected should be prepared for the superstructure by such owners, and that the contractors should have notice whenever that time arrived. It was the indispensible condition to the performance of any of the obligations incurred by the contractors that the foundations should be prepared, and unless they were to be so prepared it rendered the whole contract motiveless and nugatory.

It is not denied by the respondents but that the duty of preparing the foundations was assumed by them, but it is urged that there is no provision in the contract requiring them to have all of the foundations, or any particular portion of them, ready at the time Of giving the notice of readiness stipulated for in the agreement. In this we think they are mistaken. It was made the duty of the owners, not only to prepare the foundations for the reception of the work of the contractors, but also to notify them through their agent of the fact of such readiness. The terms of the contract plainly imply that the notice was to be of an actually existing condition, and not the expression of an opinion on the part of the engineer that the foundations were sufficiently advanced to enable the contractors to prosecute their work advantageously. The contractors have not submitted any such question to the decision either of the owners or their engineer, and in view of the heavy •obligations assumed by them it would have been unwise and hazardous to have done so. There is no rule of construction or principle of law, which will justify a party who is required by contract to give notice to another of the existence of a fact upon which important obligations depend, to do so untruly, or in such a manner as to prejudice the contractual rights and privileges of the party entitled to notice. It was held by this court in the case of Peck v. Collins (70 N. Y., 382), that notice of readiness to perform implies readiness on the part of the party giving such notice, and, if he was not in fact ready, neglect to perform on the part of the other party constitutes no default. It is ■a well-settled principle of law in the construction of contracts that when the obligation of performance by one party presupposes the doing of some act on the part of the other, prior thereto, that the neglect or refusal to perform such act, not only dispenses with the obligation of performance by the other, but also entitles him to rescind, or, when rescission will not afford him an adequate remedy, to continue the work, and recover such damages as the delinquency has occasioned against the defaulting party. Cross v. Beard, 26 N. Y., 88.

The meaning of a contract is to be gathered from a consideration of all of its provisions, and the inferences naturally derivable therefrom as to the intent and object of the parties in making it, and the result which they intended to accomplish by its performance. It was said by Allen, J., in Booth v. Cleveland Mill Co.,(74 N. Y., 21):

“There is no particular formula of words or technical phraseology necessary to the creation of an express obligation to do or forbear to do a particular thing, or perform a specified act. If, from the text of an agreement, and the language of the parties, either in the body of the instrument or in the recital or inferences, there is manifested a clear intention that the parties shall do certain acts, courts will infer a covenant in the case of a'sealed instrument, or •a promise if the instrument is unsealed, for non-performance of which an action of covenant or assumpsit will lie.”

It was said by Judge Danforth, in New England Iron Co. v. Gilbert Elevated R. Co. (91 N. Y., 165), that, “although the defendant does not in express terms undertake to do the act or give the notice which shall set the plaintiff in motion a promise to do so” “is clearly to be implied from the covenants and stipulations which were inserted. ” ‘ ‘ There is manifested a clear intention on the part •of the defendant to construct the railway, and for that purpose do certain things; among others, raise the money, provide the masonry, and give instructions to the plaintiff. These things, and others on the part of the defendant, the-plaintiff by the contract acquired an interest in having performed; and there is an obligation for their performance to be implied in its favor.”

The language used in these authorities is peculiarly applicable to the case in hand, and furnishes a safe and just guide by which to determine their rights.

Looking at this contract in the light of decisions referred to, it would seem that the plainest principles of justice require the implication of a covenant on the part of the defendant to prepare the foundations in question so as-to have them in a condition to enable the contractors to prosecute their work to the utmost advantage and economy before giving the notice which set the time limited for their completion in motion. Any other construction would destroy the mutuality of the agreement, and put it practically in the power of one party to defeat performance by the other.

It is quite obvious that the provisions of the contract in respect to time are of its essence, and were regarded by the parties as of primary importance; the contractors being stimulated to great diligence by the prospect of extraordinary compensation therefor, and deterred by the certainty of great pecuniary loss from dilatoriness or delay in the prosecution of their work. A construction which enabled the railroad company to retard the prosecution of the work by the contractors, or disabled them from employing all of the agencies or force which, in their judgment, could wisely and advantageously be used in its performance, would, operate as a fraud upon them, and render their covenant to complete the work in five months a reckless and foolhardy undertaking. The very assumption of such a covenant on the part of the builders implies an understanding on the part of all parties that they were to be unrestricted in the employment of means to perform it, and that nothing which it was the duty of the owner to do to enable the contractor to perform should be left undone. It is unreasonable to suppose that the parties intended to enter into obligations providing for the performance of work by one party, under a heavy penalty for non-performance within a given period, which yet left it optional with the other to facilitate or retard such work at its pleasure or discretion.

It is also claimed by the respondent that the act of the contractor in commencing the work within five days after receipt of the notice in question constituted a waiver of the breach complained of. The evidence establishes the fact that, immediately upon the receipt of the notice, the contractors protested against the act ;of the defendant, and claimed that it was given in violation of the true meaning and spirit of the contract, and that the foundations were not only not ready, but were in such a condition that they could not commence or prosecute their work except at increased expense and great disadvantage. "Under the solicitations of the engineer, however, as they offered to prove, and without waiving any rights secured to them under the contract, they in fact commenced the prosecution of the work. There is nothing in the facts upon which an intention to waive the damages arising out of the breach complained of can be predicated. When the breach occurred the contractors undoubtedly had the option offered them of refusing to commence their work -until the foundations were actually ready, or to commence and prosecute it, relying upon the covenants of their contract to recover such damages as the breach occasioned them. Starbird v. Barrons, 38 N. Y., 231; Ruff v. Rinaldo, 55 id., 664; Cross v. Beard, supra. After express notice to the defendants of their intention to hold them hable for the damages arising from the omission to complete the foundations, they elected to commence the prosecution of the work. This they were entitled to do, and it constitutes no waiver of their claim.

The further objection is taken that no valid assignment of the claim in suit was made by his copartner in the work to the plaintiff. The objection that Gill was a necessary party to the action is not taken by the answer; .and, assuming that the assignment was invalid, it does not constitute a bar to the action, because the plaintiff stiff had such an interest in the contract as entitled him to maintain an action for his damages thereon. Independent, however, of this objection, we are of the opinion that the assignment in question was sufficient in itself, or so ambiguous on its face as to authorize parol evidence to explain its meaning. The instrument in question purported to assign to the plaintiff all of Gill’s right, title, and interest to any and all claims and demands which the late firm of Gill & Mansfield have had or now have against the New York Central and Hudson River Railroad Company “for, on account of, and arising from any and all award or awards due said firm from said company under a certain contract for the erection of a grain elevator at the foot of Sixtieth street, in said city, by reason of said Gill & Mansfield having completed the construction of said elevator within a certain time specified in said contract; the said Luther E. Mansfield hereby agreeing that all prosecutions of all claims shall be in bis name individually.”

It is manifest from the language of the instrument that the parties intended to transfer some claim then in existence, arising under the contract in question, and that such claim required prosecution by action in order to enable the assignee to enjoy the benefit of the assignment. The only doubt as to the meaning of the contract arises from the use of the words “award or awards” therein. Neither the contract nor the evidence shows that any awards were contemplated by the contract, or that any had been or could be made thereunder; and in the absence of explanation as to the application of such words, there does not appear any subject-matter for the assignment to operate upon. It is a familiar rule that parol proof of extrinsic circumstances may be given to apply a description to its subject-matter, and that if it appears that the description is in some parts erroneous those parts may be rejected, and what is left, if sufficient of itself, alone be regarded. Fish v. Hubbard, 21 Wend., 651; Burr v. Broadway Ins. Co., 16 N. Y., 267; Field v. Munson, 47 id., 221; Gardner v. Heyer, 2 Paige, 11.

Upon the trial the plaintiff gave in evidence a judgment-roll in an action in the - supreme court, wherein he was plaintiff and the said Grill was defendant, instituted to procure a reformation of the language of the said assignment, so as to make it conform to the real intentions of the parties when it was made, and also an assignment executed by Grill in conformity to such judgment, transferring to the plaintiff all causes of action growing out of the contract between Grill & Mansfield and the defendant. This judgment was rendered after the commencement of the present action, and after one trial thereof had been had.- The defendant objected to the evidence. We think the evidence was competent. As we have seen, it was proper for the plaintiff to give parol evidence of the meaning of the language used in the assignment, and a judgment against Grill, the only party except the plaintiff who had an interest in the matter, determining that fact, was the highest evidence that could have been given upon the issue. The only interest that the defendant here had in that question was to be protected from any claim under the contract by other parties. This judgment bound the parties to it, and effectually protected the defendant from any claim which could be made by Grill.

We have been invited by the appellant to express our opinion upon the question of the damages recoverable in this action, but we do not think that question is before us in such a shape as to authorize an opinion thereon.

The judgments of the court below should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Raparlo, J., absent.  