
    National Bank of Commerce of Rochester, N. Y., Plaintiff, v. City of Watervliet et al., Defendants.
    (Supreme Court, Albany Trial Term,
    October, 1916.)
    Contracts—buildings — municipal — actions — pleading — extra work.
    A provision of a building contract that no extra work would be allowed for unless, upon an itemized statement of such work, a written order covering the same should be given by the architect in charge, is binding and controlling upon the parties.
    In an assignee’s action to recover under a municipal contract for the completion of a sewer system defendant admitted an indebtedness to plaintiff’s assignors in the full amount of the final estimate as made by the city engineer, but plaintiff claimed an additional sum by virtue of difference in measurements and extras. Under a stipulation on the record defendant paid to plaintiff the amount of its admitted indebtedness, reserving all rights to each of the parties; in the further _ progress of the trial the issues were confined to the question of interest on the sum paid by the defendant from the time the payment was due until it was paid, and the items composing the additional claim made by plaintiff. Under a provision of the contract that “no extra work will be paid for or allowed unless the same is done on the written order of the engineer” and a further provision that “ all bills for extra work must be submitted on the first of the month following the" completion of the same or same will not be allowed,” defendant interposed a general objection to the cause of action for extras. The complaint, though it alleged that said provisions “ were, by mutual agreement and custom of the parties, duly waived and canceled,” contained no allegation that such provisions of the contract had been complied with. It appeared that the amounts claimed for extras, though no bills therefor were in fact rendered, were recognized from time to time by the engineer in charge and were by him included in his estimates of the work done during certain months and the amounts due to the contractor therefor and that these amounts, which were actually for extra work done, were paid for by the city. Held, that it was a fair conclusion that there was a waiver by defendant of . the provision of the contract with reference to the rendition of bills for all extra work claimed to have been done.
    An amount claimed for compensation for excavation because of what plaintiff claimed was an error in the engineer’s system of measuring disallowed on the ground that plaintiff had not presented evidence of sufficient weight to be controlling.
    An item for additional concrete, plaintiff contending that the excavation had to be enlarged beyond the line shown on the drawing of the engineer in order to get what was considered a proper foundation, allowed in the absence of proof that a good foundation could have been had with less excavation, there being no question as to the amount of concrete used and the price thereof being fixed.
    An item of claim for oiling forms held justified for the reason that the contract or specifications did not contemplate or require such work.
    That plaintiff was entitled to interest on the amount of defendant’s indebtedness on the contract from the time it was payable, and also from the same date on the item allowed for extra work.
    Action upon a contract.
    Lynn Brothers (William F. Lynn, of counsel), for plaintiff.
    Albert J. Danaher (William V. Cooke, of counsel), for city of Watervliet.
   Rudd, J.

This action is brought by plaintiff upon an assignment of moneys due under a contract between Leary & Morrison Company and the city of Watervliet, for the completion of what is known as the storm sewer system. The contract was completed on the 10th of October, 1914. The city then admitted an indebtedness-to the contractors of $14,681.01, which was the amount of the final estimate as made by the city engineer. The plaintiff, as assignee of the interest of the contracting company under the assignment, claims that there was then due upon the contract, by virtue of difference in measurements and disputed extras, an additional sum of $1,177.20.

After issue was joined in this action a stipulation was made, which was spread upon the record, under which the city paid over to the plaintiff here the amount which the city claimed was due, namely, the sum of $14,681.01, reserving all rights to each of the parties, and the litigation proceeded; the issues tried were confined to the question of interest on the sum paid by the city under the final estimate from the time the payment was due down to the day when it was paid and the items which are alleged to be due to the contractors under the difference in measurements and disputed extras, which last named items aggregate $1,177.20.

The defendant city of Watervliet interposes a general objection to the cause of action which is covered by what are claimed as “ extras ” under that provision of the contract which reads: “no extra work will be paid for or allowed unless the same is done upon the written order of the engineer,” and the further provision: ” all bills for extra work must be submitted on the first of the month following the completion of the same or same will not be allowed.”

The complaint does not allege that these provisions of the contract were complied -with, but it does allege that they were, by mutual agreement and custom of the parties, duly waived and cancelled.”

When a contract provides expressly that no extra work will be allowed unless, upon an itemized statement of such work, a written order covering the same shall be given by the architect in charge, such provision is binding and controlling, the architect having no authority to bind the owner by oral orders to contractor, for the reason that the contract expressly limits the authority of the architect. It-has been well said that an agent cannot enlarge his own powers by waiving the limitations thereon. Langley v. Rouss, 185 N. Y. 201.

The contention here is that the principal made the waiver; the amounts claimed for extras were recognized from time to time by the engineer in charge and such extras were by the engineer included in the estimates made by the engineer of the work done during certain months and the amounts due to the contractors therefor, and these amounts, which were actually for extra work done, were paid for by the city. ' No bills for extra work were as a matter of fact rendered, but items for extra work were recognized by the engineer by inclusion in the monthly estimates and by the city when thus included, by payment thereof. It seems entirely fair to conclude that there was by the city a waiver of the provision of the contract with reference to the rendering of bills for all extra work claimed to have been done.

We will therefore consider upon their merits the extras here claimed, overruling the general objection thereto, taken by the defendant.

The items for all extra work claimed, aggregate $1,177.20 as follows:
Invert item ............................ $441 50
Extra concrete, lower dam............... 341 88
Oiling forms ........................... 393 82
$1,177 20

As to the first item, $441.50, amount claimed for compensation for excavation because of what plaintiff claims was an error in the engineer's system of measuring, the determination depends upon what is intended by the technical expression ‘1 invert line. ’ ’ The court cannot determine from the evidence what was really intended, and further it seems to be reasonably certain that plaintiff has not presented evidence of sufficient weight "to be controlling and thus this item claimed is not allowed.

The next item is for additional concrete in lower dam, due as is claimed by defendant to unnecessary blasting; the plaintiff contending that the excavation had to be enlarged beyond the lines shown on the drawing of the engineer in order to get what was considered a proper foundation.

There is no question as to the amount of concrete used and the price is fixed. There is no claim of negligence on the part of the contractors in making the excavation, except possibly that the engineer concluded that unnecessarily heavy charges were used in the blasting, but considering the character of the rock, the fact that the amount of concrete for which charge is made was actually used, and that this was in fact but an alteration by the city of the line or quantity of work, the absence of proof that a good foundation could have been had with less of excavation, the city should pay this item of $341.88.

The claim for oiling forms is justified for the reason that the contract or specifications did not contemplate or require the oiling of wooden forms.

The defendant attempted to show that good engineering required it, some testimony was to that effect and some that it did not. The contractors were not required to do what the contract did not call upon them to do and inasmuch as the defendant insisted upon their oiling all wooden forms the city having the benefit, if there was any, payment should be made for the reasonable value thereof which was $393.82.

The amount due from the city on the contract was payable November 10,1914.

A dispute arose because of the claims covered by the items heretofore mentioned, and under a stipulation the city paid what it admitted to be due to the plaintiff under the assignment, namely, the sum of $14,681.01, leaving for determination on this action the items of extras and the interest claimed on $14,681.01 from the 10th of November, 1914, to the date of payment by the city under the stipulation, the 18th of April, 1916.

The plaintiff is entitled to interest on $14,681.01 from November 10,1914, when it was payable, and also from the same date on the items allowed at $341.88 and $393.82.

Judgment accordingly.  