
    Gustavus Isaac, Resp’t, v. James B. Smith et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed April 9, 1888.)
    
    Contract—Evidence of terms—When oral statement admissible.
    Where a written contract to furnish materials and work does not specify quantities and the written terms do not inferentially fix them by reference to something else, it is competent to prove the oral statement of the party made before the contract was entered into as to the quantity that the contractor would be called upon to furnish under the said contract.
    Appeal by defendants from judgment entered on report of referee.
    
      Jacob F. Miller, and Hamilton Odell, for app’lts; Ger.shom A. Seixas, for resp’t.
   Sedgwick, Ch. J.

The defendants had contracted to build certain houses. They communicated with the plaintiff in respect of an estimate of the cost of furnishing to the defendant, for the houses, certain material, and of work in putting that material in the houses. The plaintiff examined plans and specifications handed to him by the defendant, as those that were to be used in the building.

The plaintiff, on July 9, 1881, made to the defendants in writing the following proposals:

“ I propose to furnish and erect eight inch hollow brick arches, 1£ inch, concrete furring blocks, 1 and 4 inch, Mansard roofing blocks in buildings 14, 16, 18, 20 Broadway, and 5 and 7 Beaver street, known as Humiwell Building, $20,000, etc., eleven tier beams to be filled, excepting corridors.”

The defendant sent to the plaintiff as an acceptance of the proposal, the following: “We accept your proposal to furnish material and put in burned clay arches, and to do the furring of the building for H. H. Humiwell, esq., at 14, 16, 18 and 20 Broadway, and 5 and 7 Beaver street, for the sum -of $20,000_, etc.

The plaintiff proceeded to do the work, and as the referee found, did sustantially ail the work of the kind referred to that was required by defendants for the completion of the buildings, in that respect.

The plaintiff claims in this action, that in furnishing the material, and doing the work, he furnished and did more than was required by the proposal and estimate, and demanded judgment for an amount claimed to be unpaid upon the sum of $20,000, specified in the writing, and for the value of the excess claimed. The form of the plaintiff’s claim was a quantum meruit for the whole.

In proceeding to prove the contract between the parties, the plaintiff offered to prove certain oral statements of one of the defendants as to the amount of materials that the plaintiff would be called upon to furnish under the proposal that was asked of him. The defendants objected that such testimony would vary the contract in writing that was formed by the written proposal and acceptance, and was. therefore inadmissible. The referee overruled the objection, and the exception to this makes the important question upon the appeal.

The plaintiff testified that before he made the proposal, he examined the plans and specifications in order to compute the quantities that he would be obliged to furnish, and upon his result he offered verbally to do the whole for $24, - 000. The defendant said that was too high. The plaintiff said it was not too high, if he was to do what the plans; called for, at the same time giving his calculations as to-this. The defendant said, in substance, that there would' be changes in the plans, etc., and that the plaintiff need not estimate upon more than 60,000 feet of arching, 32,000 feet of furring work and filling in Mansard roof with four-inch hollow Mansard blocks.

The plaintiff in pursuance of that made his written proposal.

In my opinion, the referee correctly allowed the testimony.

The contract does not specify quantities. The appellant’s counsel does not argue that the written terms inferentially fix them by the reference to the buildings. The houses were not then so far built as to disclose in the structure how much material and work of the kinds in the contract would be needed. It was not meant that the plaintiff should do all that might be called for by the defendants in altering the buildings as he pleased, in those respects that might indefinitely increase the amount of material to be furnished by the plaintiff.

There was, therefore, by necessity to be a resort to something outside of the writings to fix the quantities. The appellant argues that the contract intended there should be a resort to the plans and specifications. There is, however, no mention of them in the contract. If resort should be had to them, it would not be because the contract in writing specifically required it, but because in. fact they had been the basis of the bargain.

The evidence showed, however, they were not in fact the basis. The defendant, in substance, verbally modified them as to quantities, saying the plaintiff should only estimate upon the quantities that have been specified.

Any other view of the arragement would leave the writings without that certainty that is an essential quality of a contract, and the plaintiff would have a legal right to sue for the quantum meruit, referring in the evidence upon the value to the writings as admissions.

In the course of the trial, the plaintiff gave evidence of what corroborated his specific position, and also gave him a cause of action in itself for what he recovered. He testified that when he ascertained that he had furnished the quantities that had been named by him to the defendants, he informed the defendants of it, and declared that he was not bound to do more, whereupon one of the defendants requested him to proceed, and promised to pay him for what .he should thereafter do.

. On the trial the defendants’ witnesses contradicted the testimony for the plaintiff, that has been referred to. The -determination of the referee of this question of credibility cannot be reversed upon the case as it is.

The other exceptions have been examined. They do not require a reversal of the judgment.

Judgment affirmed, with costs.

Dugro and Truax, JJ., concur.  