Ayer v. Kobbe

I concur with the chief justice, that the entranceway was not constructed within a reasonable time; that the failure to do so was a breach of the plaintiffs’ agreement with the defendants, and that the plaintiffs should not recover rent therefor for any period anterior to its full completion.

But I think the chief justice is in error in holding that the damages which the defendant claims to have sustained, by reason of the breach of the contract by the plaintiffs, is not the subject of counter-claim or recoupment. They were damages for the breach of the same contract, and, therefore, within the definition of counter-claim (Code, § 150).

As the referee determined that the work was done within a reasonable time, he necessarily overruled the entire defense, as well the counter-claim as that the plaintiffs should have no rent for the entranceway.

It is not necessary, therefore, to look at the evidence of damage. The conclusion of the referee, as a matter of law, overruling the counter-claim on the ground that the work was done in a reasonable time, having been erroneous, it is to be assumed that he did not overrule it as being unsupported by evidence.

I think the judgment should be set aside, order of reference vacated and new trial granted, with costs to the appellant to abide event.

As there was but one hoistway in the building at the time the lease to Dickinson was executed, and that one extended through every floor from the top to the sub-cellar, it may well be assumed, in the total absence of evidence tending to show the contrary, that both parties to that instrument designed and intended that the steam hoisting apparatus provided for therein should be placed in the hoistway which was already constructed. It is reasonable to suppose that if the parties had contemplated the construction of a new hoistway in another place, they would have said so in the lease, and would also have provided for its cost, location, &c. So long as Dickinson remained the sole lessee, therefore, the lessors not only had the right, but it was their duty to place the hoisting apparatus in the old hoistway, when required to build it. if or were the rights and duties of the lessors, in this regard, at all changed by the sub-letting of a portion of the premises to these defendants or of the remaining portion of other sub-tenants.

The lessors stood in the same position in relation to all the tenants, collectively, which they occupied in regard to the original lessee, although their duty to erect the apparatus was to be performed upon the requisition of the defendants alone.

*378It follows, therefore, that when the injunction was obtained the plaintiffs had a perfect right to complete the erection of the hoisting apparatus in the old hoistway, although such erection there would seriously obstruct the only entrance to the defendants’ portion of the building.

The -latter ought, perhaps, to have foreseen all that, and provided for a new entranceway in their lease from Dickinson. It is sufficient to say, however, that the plaintiffs were not bound to do it by their lease.

But the agreement of the 19th of March materially modified the provisions of the original lease touching the hoisting apparatus and essentially changed the relative position of the parties. By that agreement it was, in effect, mutually stipulated that the work upon the hoisting apparatus should be suspended until a new stairway and entrance should be provided for the defendants and made ready for use, and the latter undertook and promised to pay the rent for such apparatus from and after the 23d of March if the same, together with such new entrance and stairway, should be completed within a reasonable time.

It is important to consider, therefore, what the parties understood by those words of limitation, “ reasonable time,” in the new agreement.

The referee was quite right in holding, as he did, that the intention of the parties in this matter was to be gathered from all the circumstances bearing upon the subject under which they, contracted. But he appears to have erred in assuming that, at the time the agreement was made, the parties contemplated the necessity of a purchase by the plaintiffs, from the tenants of the ground floor, of the right to construct a new passageway to the premises of the defendants, and that negotiations for such purchase were carried on until October. For, not only is that assumption unsupported by the evidence in the case, but the testimony of the witnesses clearly shows that both the plaintiffs and the defendants believed, when the contract was made, and until long afterwards, that- Ayer & *379Co. had a legal right to construct such passageway, irrespective of any objection or consent on the part of Amidown & Co. The defendant Kobbe testified that he did not know when the agreement of the 19th of March was entered into; that the contemplated new entrance could not be got except by consent of Amidown; nor does the witness so understand it; and he knew nothing whatever of subsequent negotiations between Ayer & Co. and Amidown.

Mr. Amidown testified that frequent discussions were had between Ayer & Co. and himself prior to March, 1868, which were continued up to October, in which Ayer & Co. claimed that they had a legal right to construct a new passageway for the defendants over the premises ofiAmidown & Co., and would assert that right by force if necessary; and the latter denied such right, and that no offer of a money compensation for permission to construct such entranceway was made to Amidown & Co. previous to October, 1868, when they granted the right. Mr. Birdseye, one of the counsel for the plaintiffs, testified that he frequently and almost weekly saw and conversed with Amidown & Co. and their counsel between March and October touching the claims of those parties; that during those interviews he told Amidown that he should advise his clients to go on and put in the new entranceway; and Amidown said he would resist such attempt with a strong hand; and that during all that time he “ never heard of any such thing as that Mr. Amidown would consent to take money for allowing the doorway therethat he did not hear of any such thing being talked about or negotiated for till just about the time when the agreement of October 17,1868, was entered into, and that the subject of his frequent discussions with Amidown & Go. and their counsel was, not a money compensation, but the legal rights of Amidown & Co. and the plaintiffs respectively. Mr. Crosby, the law partner of the last mentioned witness, testified, substantially, to the same effect; and so did Mr. Ely, one of the plaintiffs.

It appears from the evidence, therefore, that the parties *380to the agreement of the 19th of March did not, nor did either of them, contemplate that a purchase of the right to construct the new entranceway by the plaintiffs would be necessary to enable them to perform that act and erect the hoistway apparatus, and that no considerable portion if any part of the seven months which elapsed between the making of the agreement of March and the final completion of the work was employed by Ayer & Oo. in negotiating for the right to construct the contemplated new entranceway; and it follows that his conclusion, based upon the contrary hypothesis, that the entranceway and apparatus were constructed within a reasonable time after the making, of the contract, and that the plaintiffs were therefore entitled to recover rent for the apparatus between the 23d of March, 1868, and the final completion of the hoisting apparatus, was erroneous.

The claim of recoupment on the part of the defendants for damages because of the failure of the plaintiffs to construct the apparatus within a reasonable time after the making of the agreement of the 19th of March, does not appear to be established by the evidence.

The agreement, in effect, prohibited them from erecting the apparatus unless they also furnished the defendants with a new entranceway, and it did not require the plaintiffs absolutely to furnish such entranceway, but it was left by the contract wholly optional with them.

The error of the referee, therefore, only affects the rights of the parties in so far as concerns the extent of the plaintiffs’ claim, and that ought to be reduced by deducting from the judgment the amount allowed by the referee for the rent of the hoisting apparatus, from the 23d of March to the time when it was completed and ready for use. If the plaintiffs consent to make that reduction, the judgment, so modified, should be affirmed, with costs of this appeal to the defendants; if not, the judgment should be reversed, the report of the referee and the order of reference vacated, and a new trial ordered, with costs to abide the event.

*381It may be added, that the decision of the referee touching the sufficiency of the apparatus cannot properly be disturbed, and he appears to have committed no substantial error in the conduct of the trial.

Yau Vobst, J., concurred,