Meyer v. Haven

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 [200] 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. [201] 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 [202] 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.