Slattery v. Mayor

This cause of action was to recover damages because the defendant compelled the plaintiff to do the work under a contract in a wrong, erroneous and disadvantageous manner, whereby the cost of the work was largely increased and the plaintiff was put to great loss, damage and expense, and on the ground that this additional expense was caused by the defendant compelling the plaintiff to withdraw certain sheet piling which had been placed to uphold the bank of the sewer while the same was being built.

Among the provisions of the contract were the following : “ The sides of the excavation shall be supported by suitable planking and shoring wherever necessary, and in all cases the same are to be drawn as the work progresses, unless otherwise ordered. * * *

“ Where sheet piling is rendered necessary, and used only in prosecuting the work, no allowance will be made therefor and it shall in all cases be drawn as the work progresses, unless otherwise ordered by the said Commissioner.

“ When the sheet piling is so retained,.the price bid for timber for bracing and sheet piling when ordered to be left in the trench will be allowed.”

It is claimed upon the part of the appellant that the duty of determining whether or not the sheet piling should be left in the trench was laid upon the defendant by the express terms of the contract,'and that its erroneous decision that it was not necessary that the sheet piling should remain was the direct cause of the increased cost occasioned to the plaintiff. We are unable to place this construction upon the contract. The provisions of the contract are that the piling shall be withdrawn in all cases as the work progresses, unless *129otherwise ordered, in which case payment is allowed. In the absence of instructions to the contrary, the plaintiff was bound to withdraw the piling and the work was not complete until this was done, and if in withdrawing the piling he injured the work already done, and, therefore, could not deliver it in completed condition without additional expense, that seems to have been what the plaintiff undertook under his contract and he cannot recover from the defendant. Whether or not it was wise for the plaintiff to enter into such a contract, cannot affect the question as to his right to a recovery for this additional expense. He did enter into such a contract; he was not relieved from its obligations, and he has simply complied with its requirements. This seems to be all there is of the question involved on this appeal.

' The judgment should be affirmed, with costs.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.