
    John Monks and Sons, Respondent, v. West Street Improvement Company and Others, Appellants.
    First Department,
    March 8, 1912.
    Contract — agreement to drive piles — no mutual mistake as to nature of material filling cribs — mistake of one party only — recovery on contract — estoppel to deny terms of contract.
    Action by a contractor to recover for extra work necessitated by the fact that he was required to drive certain piles through cribs filled with stone instead of cribs filled with earth. The plan upon which the bid was made showed the existence of cribs and the spaces between the timbers thereof contained the word “earth.” It appeared that the existing cribs in order to resist lateral pressure under the circumstances would have to have been filled with stone. The plans did not purport to be a complete representation of the work to be done, but only to show the number of piles to be driven. The plaintiff had been invited to inspect the premises.
    
      Beld, that the plaintiff could not recover for extra work done upon the ground of mutual mistake as to the nature of the crib filling, but under the circumstances was bound to investigate and ascertain the situation for itself.
    Especially is this so where the memorandum for bidders stated merely that the information given by the blue prints was all that was “ available," and that the typical “ crib ” foundation shown was only that found at a single boring, and in effect that the nature and extent of the cribs was not determinable.
    The plaintiff contended that said memorandum to bidders had not been delivered to him by the defendant’s engineer. Evidence examined, and held, that a finding that the memorandum had not been delivered was against the weight of evidence.
    Moreover, the existence of said memorandum for bidders showing defendant’s lack of knowledge of the nature of the crib work of itself refuted the plaintiff’s claim of mutual mistake of fact.
    
      To recover because of a mutual mistake of fact it must be shown that both parties to the contract were mistaken.
    Where the plaintiff pleaded the contract and has recovered thereon it is estopped from asserting that there was no meeting of the minds on all its terms.
    Appeal by the defendants, West Street Improvement Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2Bd day of January, 1911, upon the report of a referee in an action to foreclose a mechanic’s lien.
    
      L. Laflin Kellogg, for the appellants.
    
      William A. Keener, for the respondent.
   Miller, J.:

The defendant John Peirce Company, which for brevity I shall hereinafter refer to as the defendant, contracted to erect a building for the defendant West Street Improvement Company on the west side of West street, between Albany and Cedar streets, in the borough of Manhattan. It invited bids from different contractors for doing the excavating work and preparing foundations, and, pursuant to that invitation, the plaintiff, on September 15, 1905, submitted a proposition in writing to excavate over the entire area of the lot down to the level of thirteen feet eleven inches below the curb, to furnish and drive piles of the number shown on plans exhibited, to excavate for and build concrete piers up to the grillage beams, to shore and underpin adjoining buildings if necessary, to excavate for the boiler pit, and to sheathpile the streets, build sidewalk bridges, and do all necessary pumping for the lump sum of $77,500, and to drive extra piles, make extra excavation and furnish materials for, mix and place concrete for cellar floor at stated unit prices. The defendant replied in writing, accepting the proposal upon condition that a satisfactory agreement should be signed that the work should be completed before January 1, 1906, and that for each day’s delay beyond that time the plaintiff should pay the sum of $100. It was also proposed that the plaintiff should do certain additional work. Those conditions do not appear to have been assented to.- Nevertheless, without waiting for an agreement to be made and a formal contract to be executed, the plaintiff commenced to excavate for the building. The defendant caused specifications and a formal contract to be prepared, but when that was submitted to the plaintiff it refused to execute it for the reason that it had discovered in the progress of the work rock-filled cribbing where piles had to be driven, which, it claimed, was different from the situation indicated on the blue prints, upon which it had submitted its proposal. Thereupon, the defendant in a letter to the plaintiff stated its position in effect to be that the plaintiff was bound to complete the work in accordance with its proposal, notwithstanding unexpected developments, and suggested that the plaintiff could follow one of two courses: (1) Abandon the work and take the risk of being subjected to damages for breach of contract; (2) complete the work in accordance with the specifications, and if its view turned out to be correct, recover extra compensation on account of the new developments. Without anything more definite being agreed upon, the plaintiff continued the work. The original plans were changed from time to time, requiring extra work which the plaintiff performed.

The plaintiff pleaded in its complaint the contract evidenced by the letter of September 15, 1905, and sought to recover the stipulated lump sum specified in the contract, the stipulated unit prices for extra work and stipulated prices for extra work performed under subsequent modifications of the contract. On the hearing before the referee, the plaintiff was permitted, over the defendant’s objection and exception, to introduce evidence in support of its claim that its proposal of September 15, 1905, was submitted under a mutual mistake of fact as to the presence of rock-filled cribbing, and at the close of its evidence was permitted to amend the complaint to conform to the proof. The plaintiff’s evidence established the performance of work amounting, according to the stipulated unit prices and lump contract price, to $103,850.01. It had received $83,485.98, leaving unpaid the sum of $20,364.03, which with interest to the time of the judgment amounted to $25,931.11. The defendant does not question the plaintiff’s right to recover that sum. The plaintiff also established without serious dispute that the presence of rock-filled cribbing increased the expense of doing the work by the sum of $23,003.85, which with interest amounted to $29,299.25. The right to recover the latter sum only is involved on this appeal.

We shall assume that, upon the plaintiff’s theory of the case, it could recover in this mechanic’s lien suit the sum in dispute as for extra work, and that the admission of evidence to sustain that theory and the subsequent amendment of the pleadings to conform to it were proper, and shall come directly to the merits of the controversy. Negotiations leading up to the commencement of the work were conducted on behalf of the plaintiff by one Charles H. Deans, an engineer. The proposal of September 15, 1905, was signed, “John Monks & Sons, per Chas. H. Deans.” Prior thereto, the defendant’s engineer had invited Deans to submit a proposal, had furnished him a sketch of test borings made for the defendant, a blue print showing location of test holes and a section showing the position and character of the materials, and had informed him that the defendant had men on the lot digging pits in various places, and had invited him to inspect the premises. The sketch of test borings and the blue print section showed what any one familiar with the location would doubtless have known, even without that information, that the material to be excavated was filled-in or made land upon river mud and sand. Cribbing was indicated, though the extent of it was not shown, and upon the blue print plan there was a sketch showing a vertical section of what was styled “ typical old timber foundation,” indicating timber crib work, and in the spaces between the timbers, as shown on the sketch, was the word “earth.” It is not entirely plain, at least to one who is not an engineer, whether the spaces marked “ earth ” were intended to represent the interstices between the timbers or the pockets of the crib itself. The plaintiff’s theory is that the typical timber foundation shown on the plan indicated earth-filled cribbing; that both parties contracted upon the assumption that that was typical of all the crib work; that its contract required it only to drive piles in earth-filled cribbing, and that it is, therefore, entitled to recover as for extra work the additional expense caused by the stone-filled cribbing. The defendant called experts who testified that the typical section shown on the plan indicated to them crib work, containing more or less stone. The plaintiff’s experts, and even its general manager, who had had considerable experience in excavating along the North river, testified that the typical section shown on the plan indicated an earth-filled crib, but all said that, in their experience in excavating crib work along the North river they had always found more or less stone. They explained that, however, by saying that, if a crib was to be sunk in mud, and was intended only to sustain vertical pressure, it was customary to sink timbers in the mud and at some distance from the bottom to build a flooring and to weight the crib with rock placed thereon. All admitted, however, that to resist lateral pressure, the crib would have to be filled with stones.

A mere glance at the blue print plans suggests that the purpose of the cribbing was to resist lateral pressure, to support the made or filled-in land, and it seems to us that, independently of the plans, that would occur to any one as familiar with the location as the plaintiff was. There is no suggestion of bad faith on the part of the defendant. Indeed, the plaintiff’s theory is that of mutual mistake. The defendant gave the plaintiff such information as it had, i. e., the blue prints prepared for it by engineers, showing test borings and the character of materials discovered, but these blue prints did not purport to be a complete representation of all the materials to be excavated or encountered in the driving of piles. The information that men were digging pits, coupled with the invitation to inspect the premises, was notice to the plaintiff that it could not rely upon the blue prints as completely showing the situation. The plans formed no part of the plaintiff’s proposal except in so far as they showed the number of piles to be driven. The proposal was not limited to driving piles in, or making excavations of, specified material, and we think that, in view of the fact that the blue print plans did not purport to be a complete representation of the work to be done, in view of the invitation of the defendant to inspect the premises, and in view of the plaintiff’s familiarity with the location and presumed knowledge of the probability that stone-filled cribs would be encountered, it was incumbent upon the plaintiff to investigate and ascertain for itself the situation, or, failing that, to protect itself by limiting its proposal to work of the character indicated by the blue prints. If the proposal had been thus limited, it is altogether probable that some other bidder would have got the contract.

Moreover, the defendant’s engineer testified without dispute that he prepared a paper styled “memoranda for bidders” and that he delivered a copy of it to Deans. That memorandum stated that all information available was given on accompanying blue prints, specified how far the excavation was to be carried, how concrete was to be made, and called for proposals for specific items of work. It also contained this statement: ‘Note that the ‘typical’ crib foundation shown on this plan was found only at boring % 3. At the other points marked ‘crib; the wash pipe was stopped by timber but the nature and extent of same was not determined.” Deans had died before the trial. The plaintiff’s manager testified that he had never seen that memorandum. It is claimed that the positive testimony on direct examination of the defendant’s engineer is weakened by the following statement on cross-examination: “It is my recollection that I gave also to each one of these bidders this memoranda for bidders known as Exhibit E. Undoubtedly I did. They had to have that to start on the figures. At this time, our specifications were not prepared.” It is also urged that, even if Deans did have the memorandum, his knowledge was not the knowledge of the plaintiff. But that contention overlooks the fact that all of the negotiations on behalf of the plaintiff were conducted by Deans, and that the proposal was made in the plaintiff’s name by Deans. Of course if that memorandum was delivered to him, the plaintiff was called upon to ascertain for itself, before submitting a proposal, the character of the work to be done. The referee found that said memorandum was not delivered to Deans. We think that finding against the evidence. It is opposed both to uncontradicted testimony and to the probabilities of the case. But even if it was not delivered to Deans, it is of itself sufficient to refute the plaintiff’s claim of mutual mistake. It was concededly in existence. Each of the other bidders testified that he received a copy of it. It establishes beyond peradventure that there was no mistake on the defendant’s part. It did not contract on the assumption that only earth-filled cribs would be encountered, and to recover upon the theory of mutual mistake it is not enough to show that one party to the contract was mistaken. It does not necessarily follow from the fact that the defendant was not mistaken that it was guilty of misrepresentation; but we do not need to consider that as no such issue is involved. The evidence and the rules of law applicable to a controversy involving such an issue are very different from those involved in this case.

I have considered the case upon the assumption that the plaintiff’s proposal of September 15, 1905, was accepted and became a binding contract. In fact, however, the acceptance was not unconditional, something remained to be agreed upon, and it may be that the plaintiff could have recovered for all the work done on a quantum meruit. Under the circumstances disclosed in this case, a recovery on that basis would doubtless have been just between the parties. The contract price was evidently favorable to the plaintiff. At least, it has indicated an eagerness to hold fast to it. It has pleaded the contract and has recovered the stipulated contract price, both the lump sum and the unit prices for the extra work. It has thereby concluded itself from asserting that there was not a meeting of the minds upon all of the provisions of the contract, and it would be manifestly unjust to the defendant to give the plaintiff the stipulated prices and an additional sum for work covered by the contract, but which for unforeseen circumstances cost more than the plaintiff expected.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the final award of costs, unless the plaintiff stipulate to reduce the recovery to the sum of $25,937.11, in which event, the judgment, as modified, should be affirmed, with costs to the appellant.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce recovery as stated in opinion, in which event, judgment, as modified, affirmed, with costs to appellant. Order to be settled on notice.  