St. George Contracting Co. v. City of New York

Cullen, Oh. J. I concur in the reversal of this judgment. I am of opinion that on the facts found the plaintiff was entitled to a recovery against the defendant for a breach of the contract, but I wholly dissent from the rule of damages laid down hy my brother, Collin, J. Under the contract the plaintiff’s assignor was not to be paid a gross sum for the improvement but unit prices for the various kinds of work that he might- do in the performance of the contract. Concededly the 1,175 yards of excavation for which the plaintiff now seeks to recover was "never done by it, but by a third party, the Baltimore and Ohio Railroad Company, which was working on the adjoining property, after the contract between the parties to this action was signed, but before the plaintiff ever entered upon the performance of his contract and while the land was still in the exclusive possession of the defendant. It is claimed that the work so done by the railroad company inured to the benefit of the plaintiff, on what possible theory I am at a loss to imagine. There was no privity between the plaintiff and the company. The company did not assume to do the work in aid of the plaintiff or in the performance of its contract. According to the theory contended for, if a stranger had made the whole improvement gratuitously without the plaintiff or any of its officers having done a particle of work, the plaintiff would be entitled to recover the full contract price. The logic of the claim would lead to the same conclusion even if the third party had not done the work gratuitously but had been employed to do it hy the defendant. The conclusive answer to the argument that the plaintiff was at liberty to adopt the act of the rail *123 road company is that even to-day the defendant, being the owner and in possession, could sue the railroad company for the trespass on its land. The plaintiff is entitled to the same measure of damages for the failure of the defendant to permit it to do part of the work as it would have been on a failure to permit it to do any of the work; that is to say, the difference between the cost to plaintiff of doing the work and the contract price to be paid therefor. But this is all to which it was entitled. There is a further answer to the plaintiff’s claim. The contract provided not only for excavation but that the excavated material should be placed behind the retaining wall as a support and a buttress. The material excavated by the railroad company was not so placed, but carried away. Therefore, the provision of the contract in respect to the 1,175 yards was never carried out. Assuming, which I deny, that the plaintiff was at liberty to adopt the action of the railroad company as done in its behalf, it must adopt that action as a whole. It must take it cum onere. Certainly, its position with reference to the work done by the company cannot be any better or stronger than if it had hired the railroad company to make the excavation, in which case it would have been liable for the failure to deposit the material as a support to the wall. How can its responsibility for the railroad company’s action be less because the latter’s services were gratuitous ? Ordinarily a party to a litigation is not permitted to blow hot and blow cold in the same breath. Of course, all this is said only on the assumption that the plaintiff elects to and can adopt the railroad company’s acts, which is the only theory on which its right to recovery for the whole contract price can be asserted.