
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’t, v. The New York Refrigerating Construction Company, et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed May 21, 1895.)
    
    1. Principal and surety—Liability.
    Where the recital of ahond. refers to a written contract which is attached thereto, and the condition of the bond requires a performance of the contract in ‘-each and every provision therein contained,” such recital is broad enough to cover the condition and to render the sureties on said bond liable if a breach is established.
    3. Contract—Rescission.
    The general rule that, where a contract is rescinded while in the course of performance, no claim in respect of performance or of what has been paid or received thereon, may thereafter be made, is subject to the qualification that any claim founded on the contract must be referred to the agreement of rescission to ascertain whether it has been expressly or impliedly reserved.
    3. Same.
    Where the mode of procedure, prescribed by the contract in case of nonperformace by one of the parties is pursued by the other party, it does not constitute a rescission in the strict technical sense whicli destroys all rights of action, but is a termination of the contract according to its terms and leaves undisturbed all existing liabilities.
    4. Appeal—First instance.
    A question which might have been obviated if seasonably raised, cannot.' be presented for the first time on appeal.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial of special term.
    
      Barton N. Harrison, for app’lt; D. J. Dean, for resp’t.
    
      
       Affirming 2 St. Rep. 553.
    
   Bartlett, J.

This is an appeal from a judgment of the general term, first department, affirming a judgment in favor of plaintiff.

This action is brought to recover under a written agreement and a bond executed in pursuance thereof.

The corporation defendant executed the agreement with the city of New York, and the individual defendants are the sureties otithe bond.

The refrigerating company, as the highest bidder, was awarded the privilege of introducing its refrigerating apparatus in the new West Washington Market, paying therefor five per cent, of the gross receipts from the standholders in the the market, and the additional sum of fifty-five hundred dollars yearly, payable quarterly.

The agreement required the refrigerating company to give a bond, in the penal sum of ten thousand dollars, for the faithful performance of the terms of the agreement, with two sureties.

The bond was duly furnished by the refrigerating company, with three sureties, the individual defendants.

This action is brought to recover two quarterly payments of §1,375.00 each, alleged to be due under the contract, February 1st. 1891, respectively.

It is stipulated that a second pending action shall abide the result of this one.

Several defenses are pleaded by the defendants.

It is insisted that the recital of the bond is not broad enough to-cover the condition, and, as a result, that the sureties are not liable in this action.

The recital refers to the written contract which is attached to the bond; the condition requires a performance of the contract in “each, and every provision therein contained,” and it is clear that the sureties are liable if a breach is established.

It is argued that a surety is never to be implicated beyond his specific engagement, and that his liability is always strictis simis juris, and must not be extended by construction.

While this rule is well settled and the courts uniformly enforce it, the case at bar presents no violation.

It is further urged that the contract has been canceled and annulled by the parties, and that an action cannot be founded thereon.

We have been referred to numerous authorities laying down the general doctrine that where a contract is rescinded while in the course of performance, no claim in respect of performance, or of what has been paid or received thereon, may thereafter be made.

This general-rule is subject, however, to the qualification that any claim founded on the contract must be referred to the agreement of rescission, to ascertain whether it has been expressly or impliedly reserved. McCreery v. Day, 119 N. Y. 5.

In the case cited Judge Andrews says that the liability of Garrison “ depends on the intention to be deduced from the agreement of annullment, constructed in the light of attending ■circumstances."

In the case at bar we must apply this principle of construction, as it will be unjust to enforce a hard and fast rule without regard to the situation of the parties and the circumstances that induced the city of New York to terminate the contract.

The fifth subdivision of the contract provides the mode of pro: •cedure in case of non-performance by the refrigerating company. The comptroller was to certify the fact in writing to the commissioners of the sinking fund and the company afforded an opportunity to be heard in reply to the charges, and ■ after the hearing comptroller, upon the direction of commissioners, was vested with the power to notify the company to discontinue its system.

This provision of the contract was invoked by the city, the company failed to appear before the commissioners in answer to the charges preferred by the comptroller, and the latter, by direction of the commissioners, notified the company to discontinue its system and that its contract was canceled and annulled.

At the time this occurred these actions were pending to recover payments due under the contract, and yet the appellants contend that it was was the intention of all the parties to the contract to effect a strict rescission leaving the situation precisely as if no contract had ever existed.

In view of the status when the comptroller, acting under the direction of the commissioners of the sinking fund, served his final notice, we think it was not a rescission in the strict technical sense which destroyed all rights of action, but was a termination of the •contract according to its terms and left undisturbed all existing liabilities;. the rescission had no retroactive effect. This result is to be fairly implied from all the .surrounding circumstánces and carries out the obvious meaning of the parties when the contract was executed.

The position assumed by the appellants is technical, forced and unnatural.

We have been referred to a number of cases involving questions somewhat similar to the point now under consideration, but as ■each case rests on its on its own peculiar, circumstances, we prefer to place our decision on the facts disclosed and the general principles of law already stated.

We do not think it necessary to discuss the statutory powers of the commissioners of the sinking fund or the comptroller as we are of opinion that they acted strictly within the provisions of the contract which clothed them with abundant authority to proceed as they did in the premises.

We find nothing in the contract to warrant the contention of appellants that the fifty-five hundred dollars per annum to be paid to the city was to come out of the receipts of the business from the standholders in the market.

The covenant to pay this sum is independent of the receipts from standholders, and is absolute in its terms.

The defendant company has put a practical"construction on the ■contract to this effect by paying certain quarterly payments due under this covenant.

The appellants claim there is no proof of these payments, but when a witness, a bookkeeper in the finance department, was asked what payments were unpaid, and he named four quarterly payments, it is a fair presumption that all other were paid.

The appellants take the point that the tenth finding of fact involves legal error, as there is no evidence to support it; the finding is to the effect that the defendant corporation has not paid to the plaintiffs the sum of $1,375 in the complaint demanded for the quarter ending February 1st, 1891.

At the trial the plaintiffs swore Henry Maurer, one of the bookkeepers in the finance department, and he testified to four quarterly payments as unpaid, being the following, viz.: Feb. 1st to May 1st, 1891; May 1st to Aug. 1st, 1891; Aug. 1st to Nov. 1st, 1891; Nov. 1st to Feb. 1st, 1892.

The complaint in this action covers payments alleged to have become due February 1st, 1891, and May 1st, 1891. There is no proof before us as to the quarterly payments embraced in the second action, which is to abide the result of this, but presumably it was intended to cover the other two of the four payments remaining unpaid.

As the payments were not due in advance, the testimony of the witness referred to does not relate to a first payment due February 1st, 1891, but to one due May 1st, 1891, and the result is that the tenth finding of fact would seem to be without evidence to support it. This failure of proof was not specifically pointed out by defendants’ counsel at the trial.

After the plaintiffs rested counsel for defendants moved separately as to each of the defendants “to dismiss the complaint on on the ground that plaintiffs have not proved the cause of action alleged in the complaint as against the defendant for" whom the motion to dismiss is made, and upon the further ground that no cause of action has been proved in favor of the plaintiffs and against the defendant for whom the motion to dismiss is-made."

As plaintiffs’ witness had testified to the four quarters’ rent-claimed to bé due and unpaid, it was incumbent upon defendants to raise the specific objection that the quarter’s rent alleged to-have fallen due February 1st, 1891, had not been proved, and that-judgment could not be rendered therefor. If this had been done plaintiffs might have supplied the missing proof, or amended their pleadings to conform to the proofs.

The defendants cannot raise this question for the first time on appeal, and the plaintiffs are, therefore, entitled in the two actions-to recover on four quarters’ rent proved to be due and unpaid.

The fact that defendants’ counsel three months after the actual-trial filed an exception to the finding in question does not cure-his omission to properly raise the point by objection at the trial.

We have examined the points and exceptions, but find no reason for reversing the judgment.

The judgment should be-affirmed, with costs.

All concur.

Judgment affii'med.  