
    New York State National Bank, Albany, Respondent, v. Whitehall Water Power Company, Limited, Appellant.
    Third Department,
    November 16, 1910.
    Contract — building contract — agreement that respective parties shall be charged with delays caused by them — appeal — failure to make findings of fact and conclusions of law.
    Delays caused by respective parties to a building contract may be apportioned between them and each charged with the delays caused by him, if the contract so provides.
    
      The trial court must make findings of fact and conclusions of law which fairly sustain its judgment.
    A judgment entered in an action upon a building contract which provided that each party should be charged with the delays caused by him .will.be reversed, if there be no finding as to the amount of delay caused by the respective parties. The appellate court will not determine such question of fact in the first instance.
    Appeal by the defendant, the Whitehall Water Power Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerlt of the'county of Washington on the 23d day of February, 1910, upon the decision of the court rendered after a trial at the Saratoga Special Term, and also from an order entered in said clerk’s office on the same day granting an-extra allowance to the plaintiff.
    
      Edgar T. Brackett, for the appellant.
    
      Hun & Parker [Marcus T. Hun and Thomas Hun of counsel], for the respondent.
   Kellogg, J.:

The plaintiff has recovered upon a building contract upon the theory that it was performed, or strict performance as to time was waived; the defendant’s principal contention is that the contract was not completed within the time agreed upon, and that it has established a counterclaim for liquidated damages of fifty dollars per day for about 250 days. By the terms of the contract, dated May 3, 1905, it was to be performed by the contractor by September 1, 1905. It was not substantially performed until about July 1,1906. The court has found that much of the delay was caused by the defendant, and has omitted to take accurate account of how much of the delay each party was responsible for, holding that the delay could not be apportioned and that the contract was performed within a reasonable time. I think it fair to assume, from the record and the opinion, that the trial justice felt that each party being responsible for delays, the defendant could not, therefore, recover liquidated damages at all, and could not require an apportionment of the delays as was held in Willis v. Webster (1 App. Div. 301).

The rule established in that case does not govern this case for the reason that in this case the parties themselves have provided that the delays shall be apportioned and, in substance, that each one shall be chargeable with the delays which it causes. Therefore, unless the defendant was responsible for the entire delays, then it is entitled to recover the agreed damages for such delays as occurred which it can trace to the plaintiff. It is apparent that the delays occurring before July 7, 1905, cannot be charged against the contractor. The wheelpit, at the very foundation of the work, it was understood at the signing of the contract, would probably .be deepened, and some change in the plan of the building and the work would be necessary on that account. We may, therefore, fairly assume that until the defendant gave instructions as to the new wheelpit the time under the contract did not begin to run, although the contractor had made substantial progress in the work in many respects during that time, and had the benefit thereof. If we add this delay caused by the defendant to the time permitted by the contract, it extends the period to about November seventh, well ahead of the freezing weather. The court has very properly held that the contractor is entitled to no additional compensation on account of the alleged necessity of building a different or larger cofferdam to enable him to do the extra work caused by the deepening of the wheelpit. But the wheelpit remains as the real disturbing factor in the case. The contractor agreed to build the building with the wheelpit, as indicated by the original contract, by September first, and by separate contract agreed as extra work to excavate the wheelpit about three and one-half feet deeper. It was impossible for him to erect the building and. carry out the contract until- the wheelpit was excavated. As a matter of fact neither party at the time apparently considered whether the deepening of the wheelpit would require greater time for the performance.of the contract. It was natural that an extension of time for deepening the wheelpit should not be discussed, as ordinarily the change would seem to be merely incidental and not likely to affect substantially the time within which the contract would probably be performed. If at this place, at that time, the contractor could not complete his contract without constructing the cofferdam entirely different than for the original wheelpit, then the building of the new cofferdam would be a matter fairly within the contemplation of the parties. The original contract required the work in and about the wheelpit to be done in a cofferdam.

The plaintiff’s evidence tends to show that a sufficient cofferdam was built prior to July seventh to enable it to excavate the wheelpit according to the original contract, and that the deep-' ening of the wheelpit rendered it impossible to perform the extra work without building a different cofferdam upon a different plan and in a different place. If a contractor is to build a certain work at a certain time, and then agrees to perform extra work the. performance of which is necessary in order to enable him to perform the contract work, it is evident if the extra work is to take any substantial time that the time of the original contract is extended correspondingly. We cannot say that the court was in error in determining that the original cofferdam built prior to July seventh was sufficient for use in carrying out the original contract. The determination of the court, upon the conflicting evidence, that, in order to do the extra work in the wheelpit it was necessary to make the enlarged cofferdam, will not be disturbed.

■ It was seriously contended by the defendant, and its evidence tended to show, that even with- the delays caused by it, the contractor did not perform his contract and complete the job within the time limit fixed by the contract and such additional time as was actually caused by the delays of the defendant. Each party from an early stage in the transaction was blaming the other, and each was claiming that the other was responsible for delays, and it would seem not unreasonable to say that the delays which each party has caused are fairly ascertainable from the evidence.

I am not satisfied that the defendant was responsible, directly or indirectly, for all of the delays. From the evidence the court should have determined what delays were chargeable to each party. It did not do this. Trial courts are required to make findings of fact and conclusions of law which must fairly sustain the judgment. Assuming that the defendant’s delays carried the contract time to November seventh, there is no sufficient finding of fact that by any act or neglect of the defendant the time of completing the contraót was delayed from November seventh until July first.

In addition to the-delay arising from the change of the wheel-pit, the court finds three other delays eaused by the defendant: (1) The Williams street excavation. This need not be considered because it occurred prior to July seventh and it is embraced within the time already charged against the defendant. (2) That certain machinery stored in the old building delayed the contractor’s work. But a finding made by the court upon the defendant’s request is inconsistent with that finding, and, therefore, renders it ineffectual. (3) Failure to furnish plans, and defective plans as to certain parts of the work, especially as to the basement. Most of the delays and defects in details and plans took place prior to July seventh and represent time fully charged against the defendant. In the'form in which this finding is made it does not go far in sustaining the recovery.

We are necessarily brought back again to the wheelpit and cofferdam. Were the existing conditions such that the deepening of the wheelpit necessarily prevented, the performance of the contract by November seventh ? Plaintiff’s assignor undertook to do the job in a proper manner within the extended time. 'Perhaps he contracted for too short a time in the original contract; nevertheless plaintiff must pay the damages for every day of excess of time which was not caused by the defendant. If, however, the deepened • wheelpit presented difficulties in making a cofferdam for it, not presented by the original contract, and thus necessarily required more -time, we may fairly consider the extra time as added to the' contract. I mean the necessary time with men, machinery and tools competent to bring about reasonable results. Time spent by the contractor in experimenting, or working carelessly or at haphazard or without effect, cannot be properly charged against the defendant. Take the situation- as it actually was, if competent men, under favorable circumstances for work of this extent and character, at this time and place, and with the reasonable facilities available there, were working to capacity on the cofferdam, how much more time would have been actually required in completing the cofferdam for the new wheelpit than would have been required for the old one 1 In other words, did the deepening of the wheelpit necessarily properly delay the work, and how much ? That is the real question, and the one which must decide the vital points in this case. If the change of plan required extra time, did the necessary extra time extend the work into the winter weather so that the contractor could not carry on his work ? If so, such useless time necessarily annexes itself as extra time. There are no findings upon these important questions, and this court cannot in the first instance determine them.

The other questions raised.need not be considered. The contract provides for an apportionment of the delays, and it was for the court to determine which party caused the delays; the findings do not contain sufficient facts to show that the defendant was chargeable with all the delays, or that the contractor did not cause delays. If every moment of delay, directly or indirectly chargeable to the defendant, is added to the contract time, and only the delays charged against the contractor which the evidence shows originated and were caused by his act, it is easy to determine the respective rights of the parties. The question of reasonable time does not deprive the contract term of its real force. Perhaps the contractor agreed to do the work in too short a time, and that it could not have been completed in time if there had been no delays. In such a case the mere fact that the defendant may have caused some days’ delay does not relieve the contractor from damages on account of delay which would necessarily have followed if there had been no act of the defendant contributing to it. The contract relieves the court of all trouble in this respect by providing that the delay of each party shall be charged against him, which means every delay resulting and following from the delay of the party. Did' the contractor complete the contract within the time allowed after crediting him with all time he lost by the acts or omissions of the defendant ? The decision does not enable us to answer this question.

The judgment should be reversed upon the law and the facts, and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.  