
    Carl Meyer and Casper Teiper, Appellants, v. William R. Haven, Respondent, Impleaded with The New York Central and Hudson River Railroad Company.
    
      Contract — delay by sub-contractors in erecting iron work on a wall which falls in a storm because thereof— where a party contracting with the sub-contractors furnished. iron work which did not fit — evidence of custom.
    
    A contractor for the construction of a building entered into a sub-contract for the erection of the iron work thereon which specified no time for the completion of the iron work, although it was to be done in compliance with the principal contract, in which a time was fixed for the completion of the building. About September fifth, the agent of the sub-contractors requested the contractor to raise the walls as they were ready to put on the iron work. On September ninth, after the contractor had raised the walls to the required height for a distance of about 160 feet, he sent a notice to the sub-contractors, stating that the walls were ‘’in great danger of injury from the elements in their present condition;” that the iron work was absolutely necessary for the protection of said wall, and that he would hold the sub-contractors responsible for the damage which might be sustained by him by reason of the failure to furnish the iron work.
    On the evening of September ninth, the sub-contractors’ agent again requested the contractor to continue raising the walls, and in accordance with such request, the walls were raised to the extent of about 180 feet on Saturday September tenth. On that day the sub-contractors’ agent undertook to erect the iron work upon that portion of the walls which had been raised, when it was discovered that the frames intended to surmount the trusses did not fit. On Sunday the sub-contractors’ agent erected five of the trusses without the frames. On Monday two more trusses were erected, when the hoisting engine broke down, and before the engine could be again made available a heavy rain set in, which continued Tuesday, the thirteenth, rendering it impracticable to erect trusses, and on Tuesday night about 180 feet of the walls, which had been raised for the purpose of placing iron work thereon, but which had not been fitted with tresses, were blown down during a storm, which was not an exceptional one for the locality during that time of the year.
    
      Held, that the two notices from the sub-contractors’ agent to the contractor to raise the walls, and the notice from the contractor to the sub-contractors that the walls were in great danger of injury from the elements in their present condition, and that the iron work was absolutely necessary for their protection, together with the exigency of the conditions surrounding the work, imposed upon the sub contractors the imperative duty to use all the force necessary to erect the iron work upon the walls as soon as practicable;
    That the fact that the sub-contractors could not secure the walls from storm, owing to the mistake of their employees in not manufacturing the iron work so that it could be used in the building, did not relieve the sub-contractors from responsibility to the principal contractor;
    That the sub-contractors’ failure to place the iron work upon the walls and the storm were concurrent causes;
    That the contractor’s measure of damage was the necessary expense of repairing and replacing the walls that were blown down;
    That the contractor’s failure to brace the walls did not constitute negligence on his part, as it was not expected that any bracing of the walls to resist outside force should occur after the iron work was placed in position, and as the contractor had reason to expect that the iron work would be placed in position immediately after the walls were raised;
    That evidence of a custom on the part of masons to brace their walls after they • were constructed and before the iron work was placed upon them was, in this case, incompetent.
    Appeal by the plaintiffs, Carl Meyer and another, from an interlocutory judgment of the Supreme Court in favor of the defendant William R. Haven, entered in the office of the clerk of the county ' of Erie on the 24th day of March, 1898, upon the decision of the court rendered after a trial at the Erie Special Term, with notice of an intention to bring up for review upon such appeal the decision and order upon which said interlocutory judgment was entered.
    The action was instituted to foreclose a mechanic’s lien for $13,789.10 and interest upon two erecting shops constructed for the Hew York Central and Hudson River Railroad Company, at Depew, in Erie county, known as shops “ A” and “ B.”
    The defendant Haven assumed the burden of the defense, and alleged in his answer, among other things, a counterclaim for damT ages growing out of the failure of tile plaintiffs to erect and place certain iron work in shop “B,” which, by contract, they were bound to do, in time to prevent the destruction of a wall by wind and storm. Haven had a contract with the said railroad company to construct several large shops at Depew, among which were the shops “A” and “B,” and in the spring of 1892 made a sub-contract with the plaintiffs, in which the plaintiffs agreed to furnish and erect in place the structural iron work of these shops. A portion of this iron work consisted of the roof trusses and clear story frames.
    The trusses were to be seventy feet long, to reach from one to the other of the side walls of the building and to rest upon them, and to be located twenty feet apart, each shop to have twenty-five trusses, the shops to be five hundred and twenty-two feet long, seventy feet wide, and the side walls to be constructed of brick, thirty-four feet high. Ho time was specified in the contract between Haven and the plaintiffs within which the iron work was be done, but it was provided that the plaintiffs were to do the work and furnish the materials specified in compliance with the contract that Haven had made with the railroad company, and in that contract a time was fixed for the completion of all the buildings, but not so with each particular detail of the work. The details were to be prosecuted with sufficient force, and it was stipulated that “ the work herein contracted for shall, under the direction of the engineer in charge of the work, be so prosecuted that the progress of contiguous work shall not be delayed.”
    The plaintiffs contracted with a Philadelphia party, the Pencoid Iron Works, to furnish, the trusses and clear story frames, and to forward them by railroad to Depew; and thereafter the plaintiffs, with the consent of Haven, contracted with the firm of Read & Gil-man to assemble (to fasten together and ready to raise) and erect in position the trasses and clear story. About August 1, 1892, Haven, a practical mason, did erect the stone and brick work of shop “B,” and raised the brick work of the walls of that shop to the height of twentj-six feet, but raised them no higher at that time, for the reason that the plaintiffs were not ready to put on the iron work. This situation continued until about the 5tli or 6th of September, 1892, when Read & Gilman, representing the plaintiffs, requested Haven to raise the walls of shop “ B ” to the height of thirty-four feet, as they were ready to put on the iron worjc. Haven proceeded to raise the walls to the required height, and on the ninth of September in.the forenoon had completed about one hundred and sixty feet in length of the.walls. At one o’clock p. m. of that day Haven served upon the plaintiffs a written notice which was as follows:
    “ To the officers of the Buffalo Bridge and Iron Works (the name under which the plaintiffs transacted business):
    “ Please take notice that the walls of erecting shop B at Depew are ready for the iron work agreed to be furnished by you under your contract we made, and that the said walls and buildings and material connected therewith are in great danger of injury from the elements in their present condition. The iron work agreed to be furnished by you is absolutely necessary for the protection of said walls, buildings and materials, and ■ I shall hold you responsible for the damage which may be sustained by me from any cause, by reason of your failure to furnish iron work as agreed by you.
    “Buffalo, September 9th, 1892. Yours truly,
    “ W. R.' HAVER”
    On the evening of that day (September ninth) Read & Gilman again requested the defendant Haven to continue raising the walls of erecting shop “ B ” to the height of thirty-four feet, and in accordance with such request the walls were raised to the extent of about one hundred and eighty feet on Saturday, September tenth. On the tenth of September Read & Gilman undertook to erect the iron work upon that portion of the wall which had been raised to thirty-four feet when it was discovered that the clear story frames intended to surmount said trusses, and to be erected with"them, did not lit, nor fit the trusses; that attempts were made to discover the difficulty on the tenth, and to remedy it. On Sunday, the eleventh, the plaintiffs did erect, through Read & Gilman, five of the trusses without clear story frames. On Monday two more trusses were erected, when the hoisting engine broke down and interfered with the work, and before the engine could be made available a heavy rain set in at eleven-twenty p. m. on Monday, the twelfth, and continued Tuesday, the thirteenth, rendering it impracticable to erect trusses; and on Tuesday night a high wind arose and blew down that portion of the side walls of the shop “ J3 ” which had been carried up thirty-four feet and which had not been covered by the trusses, the portion blown down being of the length of about one hundred and eighty feet. None of the wall which had been raised only to the height of twenty-six feet was blown down. The plaintiffs had assembled nineteen trusses, sufficient for at least two days’ work, but on account of the defect in the construction of the trusses and clear story frames, they were not in a condition to be used in the work and not available, though at the time the walls were blown down the plaintiffs had a sufficient number of trusses and clear story frames on hand, if they had not been defective, to have performed their contract. The plaintiffs returned this iron work to the Pencoid Iron Works where the difficulty was removed, and later in the fall and in November, 1892, Haven rebuilt the walls, and the plaintiffs erected proper iron work thereon and completed their contract. The contract price to be paid the plaintiffs for erecting this iron work on shops “A” and “23” was §53,790.32. No difficulty seems to have occurred as to shop “ A,” and the plaintiffs had been paid that amount, except $13,789.10, for which the lien was created.
    As a conclusion of law, the learned trial court found : “ 1. That plaintiffs are liable to defendant Haven for the damages suffered by defendant Haven because of the failure of plaintiffs to erect the trusses on the walls of erecting shop B.as soon as the said walls were in readiness for said trusses, because of which failure said walls were left in an exposed and unprotected condition and were blown down by the wfind.
    “ 2. That the amount of said damages not clearly appearing on the trial, the defendant Haven .is entitled to a reference to some referee to be appointed'by the court to take proof of, ascertain and determine the amount of damages sustained by him through said failure of said plaintiffs to so erect said trusses.”
    
      The court further found that the damages that were ascertained by a reference should be deducted from the sum remaining due to the plaintiffs on their contract, and that the plaintiffs were entitled to recover the balance, if any. And that an interlocutory judgment be entered to that effect.
    The other facts essential to be considered appear in the opinion.
    
      John L. Romer, for the appellants.
    
      Adelbert Moot, for the respondent.
   Ward, J.:

This appeal involves the question of the liability of the plaintiffs to respond in damages to the defendant Haven for the destruction of the walls of shop “ B,” that were blown down at Depew, Erie county, on the night of September 13, 1892. The court found that during the night of Tuesday, the 13th day of September, a high wind or gale arose and blew down that portion of the sidewalls of erecting shop B, which had been carried up to the height of 34 feet, and which had not been covered by said trusses; the portion blown down being of the length of about 180 feet.”

He also found that the place where the shops were erected is a level, open country about ten miles east of Buffalo where the prevailing winds are from the southwest, and where, in the fall of "the year, there are frequent storm winds.

The evidence does not disclose, nor does it seem to be claimed by the learned counsel for the appellant, that this storm Was an exceptional one for that locality for that time of the year, but was only such an one as might have been within the contemplation of the contracting parties as likely to occur.

The plaintiffs’ notice to the defendant Haven to raise the walls to thirty-four feet so that the iron work could be erected upon them implied an assurance to Haven that as soon as the walls were ready the iron work would be placed upon them. The trusses weighed about two tons apiece. When placed upon the walls, they operated to bind them and make them firm and give them greater capacity to resist the- effect of storms. It was not expected that any bracing of the walls to resist outside forces should occur after the trusses were put upon the walls, and as Haven had reason to expect that the iron work would be placed immediately after the walls were raised, it was not negligence in him not to have braced them. He had taken the precaution to notify the plaintiffs immediately after the first portion of the walls had been raised to thirty-four feet that the walls were ready for the iron work, and that there was great danger of injury from the elements in their present condition, and that the iron work was absolutely necessary for the protection of the walls. And the trial court had the right to assume that negligence on the part of Haven had in no manner contributed to the destruction of the walls. The implication in the first notice of Read & Gilman to Haven to raise the walls is strengthened by the second notice of the evening of September ninth to continue the raising of the walls to the height of thirty-four feet, which notice was complied with by Haven immediately. The notice from Haven and the two notices to Haven, and the exigency of the conditions surrounding the work, made the duty imperative upon the plaintiffs to use all the force necessary to erect the iron work upon the walls as soon as practicable. The plaintiffs, concededly, had the iron work on the ground sufficient for that purpose had it been suitable, and with proper machinery, which it was their duty to have, could have completed the work before the disastrous storm that followed. The walls were in readiness to commence work at noon on the ninth of September. The rain did not commence until midnight on the twelfth of September; the storm occurred twenty-four hours later. The plaintiffs were not required to work on Sunday, although some work was done on that day, but enough time remained, excluding Sunday, if their iron work had been in condition for use, to have substantially bound the walls with the iron work before the rain made the work impracticable. At least .there was evidence before the trial court upon which it might reach this conclusion.

The plaintiffs’ difficulty grew out of the mistake of their employee (the Pencoid Iron Works) in not manufacturing the iron work so that it could be used in the building; consequently, the plaintiffs could not perform tlieir contract and did not .secure the walls from storm. For this mistake Haven was not responsible. If it worked damage to him, he is not called upon to sustain those damages, but can require them of the plaintiffs, whose acts and omissions have caused such damages to accrue.

The appellants insist that their failure to-place proper iron work upon the building was not the proximate cause of the damages; that the proximate cause was the storm, and the plaintiffs’ breach but a remote incident. The storm was undoubtedly a concurring cause; but for the storm the damage would not have occurred, neither would it have occurred but for the failure of the plaintiff that we have indicated. Two suggestive facts in the case greatly ' strengthen this view. One is, that the portions of the wall that had been raised thirty-four feet high, that were protected by the seven trusses that had been put upon them, did not go down. The remainder of the wall that had only been raised twenty-six feet high withstood the storm in safety, so that it is almost demonstrated that the cause of the fall of one hundred and eighty feet of the unprotected wall that had been raised thirty-four feet high was because it was not protected by the iron work. As sustaining this view see Quill v. The Empire State Telephone & Telegraph Company (92 Hun, 539); Laible v. The N. Y. C. & H. R. R. R. Co. (13 App. Div. 574, and cases cited).

There is no question about the measure of damages providing the plaintiffs’ responsibility is established. Those damages would be the necessary expense of repairing and rebuilding the walls that were blown down. Haven was bound by contract with the railroad company to have these walls constructed, and his damages are the natural and necessary result of the combined causes to which we have referred.

The appellants also complain that they were hindered in the erection of the trusses by reason of the omission of Haven to remove the staging which had been used to erect the walls. There does not seem to have been any complaint at the time about the staging remaining there, and it may be questioned whether it was not useful in erecting the iron work. The trouble with the plaintiffs, as we have explained, lies deeper than the staging. If their iron work had been in a condition to have been used, there would have been no substantial difficulty in the way of the performance of their contract.

Upon the trial evidence was offered upon both sides of the custom or usage, if any existed, of masons to brace their walls after they are constructed, and before the iron work is placed upon them. The trial court had doubts about receiving this evidence, but by consent of the parties it was received upon the condition that the court might strike it out in its decision of the case, and if so, would give the defeated party an exception. We have examined this evidence. It is unsatisfactory and conflicting as to the existence of any custom upon the subject, and if any custom were shown, it does not seem applicable to the conditions of this case.

The trial court struck out the evidence and rejected it, and gave the plaintiffs an exception, which is here for review. We have shown that it was a matter of contract and duty, under the circumstances of this case, for the plaintiffs to put the iron work upon the walls at once, upon notice that they were ready, which was not done. The evidence of custom, therefore, in such a case, is immaterial, as such evidence cannot be given to overthrow a contract or dispense with the performance of an absolute duty devolved upon a contracting party. (Holmes v. Pettingill, 60 N. Y. 646; Markham v. Jaudon, 41 id. 234; Wharton Ev. [3d ed.] § 958, and cases cited in note 3 ; Thomson v. Poor, 141 N. Y. 402.)

The custom or usage claimed in this case was for the purpose of showing negligence in Haven for not bracing the walls. We have shown that that duty, under the'eireumstances, did not devolve upon him. The evidence of custom or usage is of no value in the case, and we think the trial court was justified in rejecting it altogether.

The appellants also urge that where no time is mentioned for the performance of the contract, the law annexes to that contract the condition that the party has a reasonable time within which to perform it. This is a reasonable rule and applicable to contracts generally, but what is'a reasonable time must be governed by the circumstances of each case, and we have shown in this case that the plaintiffs’ duty to erect the iron work was immediate and absolute.

We find no reversible error in the proceedings below, and the interlocutory judgment should be affirmed, with costs, and the reference ordered thereby should proceed to ascertain the amount of the damages.

All concurred.

Interlocutory judgment affirmed, with costs.  