Mott v. City of Utica

Williams, J.:

The judgment and order should be reversed and a new trial granted.

The action was brought upon a contract for sprinkling, cleaning, sweeping and removing the dirt from the paved streets of the city of Utica. The first cause of action was for the recovery of profits lost by plaintiff,by reason of-his not being permitted to perform and receive pay for certain work claimed to be covered and included in the contract, viz., upon that portion of the crosswalks on the level with the sidewalks and not within, the curb lines of the streets.

The court held with the plaintiff as to the construction of the contract, and that it covered this work, and the jury rendered a verdict for lost profits in reference thereto of $512.99.

The city caused specifications to be made of the work and the contract provided that the plaintiff should do the work designated in the specifications pursuant to the provisions thereof. The specifications provided: Subdivision 13, that the work should consist in “ cleaning the roadway from curb to curb,” and subdivision 14, that the term “ cleaning the roadway from curb to curb ” should be interpreted to include, in addition to the roadway, all crosswalks, street crossings and intersections of cross streets to the outer lines of the street being cleaned. The question is as to the construction of this language of the 14th subdivision. The plaintiff claimed he was to clean not- only the roadway between the curbs, including the roadways into the side streets to the margin of the street being cleaned, and including such parts of the crosswalks as were between the curbs, but also all parts of the crosswalks which were on a level with the sidewalks and between the curbs and the margin of the streets. For a few months he did this latter work and'drew his pay therefor. The city surveyor then notified him that this work was not within his contract and forbade him doing it, and from that time on he did not do the work nor draw his pay therefor. He, therefore, lost whatever profits there were in doing that work, if it was included in his contract. We think the .proper construction of the language confined all the work within the curbs of the street being cleaned and the cross streets, and covered no work on a level with the sidewalks and between the curbs and the margin of the. streets.

The language of subdivision 13 alone would confine the work to the curbs of the street being cleaned. The provisions of subdivision 14 required that the work include, “ in addition to the roadway, all cross walks, street crossings and intersections of cross streets to the outer lines of the street being cleaned,” This would cover the crosswalks along the street being cleaned across the cross streets, so far as the same were within the curbs of the streets. We think it was not the intention to cover anything but roadway between the curbs of the various streets and cross streets. While the construction to be given the language used in the 14th subdivision is not so clear as it might be made, we think this a more reasonable one than that given by the trial court. This work has never in fact been done, and the city should not be compelled to pay profits never earned in fact upon a doubtful construction of the contract. This verdict of the jury should, therefore, be set aside, and the judgment and order entered therein reversed. We do not think the objection made by the city, that the city surveyor had no authority to prohibit the doing of this work, is well taken. The contract provided that, the work should be performed under the supervision and direction and subject to the approval of the city surveyor. The plaintiff could not go counter to his directions and when he forbade the work to be done the plaintiff had to obey. It was the city that spoke through its surveyor.

The second, cause of action was to recover compensation for the sweeping and removal of material which was not street dirt, and was not material for the removal of which plaintiff was paid under the general provisions of the contract. The court would not permit any evidence to be given to establish this cause of action, but held that the plaintiff was compelled to remove all material, whether street dirt proper or material placed in the street by lot owners along the street taken from their yards or gardens, and was entitled to no pay for such work beyond the provision in the contract for compensation for the removal of street dirt. In this we think the court erred. The contract and specifications make it quite clear that a distinction was made between street dirt proper, and materials placed in the street by lot owner’s. The plaintiff was to remove all street cleanings and sweepings, and was to be paid for this work a certain price per great square of 1,000 square feet, according to the kind of pavement cleaned. This was the provision of the contract itself, and of subdivisions 13, 14, 18, 20 and 21 of the specifications. And then subdivision 26 provided, “ whenever in doubt as to whether any material that may be found on the streets comes under the head of, street dirt, the contractor shall remove the same, provided the quantity thereof is less than half a cubic yard, and report the fact to the office of the city surveyor.” The contract provided a price for the removal of street dirt only. Other material was. not" expected to be in the street. Lot owners had no right to put their refuse upon the streets, and the city ought not to pay for the removal thereof. The contract provided; however, for the contingency that some such refuse would be placed in the street, that if the amount was small, the contractor should remove it and report it to the city. If the amount was large, no provision was made for its removal at all. The city had power to compel the lot owner to remove such refuse from the street, whether the amount was large or small, and might compel him to pay for its removal There was no reason why the contractor should remove it without pay, and the contract did hot provide for such payment. It was work done, therefore, for which no compensation was expressly provided. Having required the plaintiff to do the work, the city was liable for what it is necessarily worth.

It is said it would be difficult to determine how much material not street dirt was removed, and what it was reasonably worth to remove it. We are not interested in that question now. The plaintiff offered to make proof on the subject, and was not permitted to give any evidence whatever. His evidence was all excluded and a nonsuit granted upon the theory that he was by the contract required to remove all materials of this character, less than one-half a cubic yard in amount, without any compensation other than that provided generally by the contract.

The judgment entered upon this decision of the court should be set aside and a new trial granted. The judgment as a whole, therefore, and the order denying a motion for a new trial should be reversed and a new trial granted upon'questions of law only, the facts having been examined and no error found- therein.

Hiscock and Stover, JJ., concurred; McLennan, P. J., dissented ; Spring, J., concurred in the reversal upon the defendant’s appeal and dissented from the reversal upon the plaintiff’s appeal,

The entire judgment and. order denying motion for new trial, reversed and new trial ordered, with costs to abide, event, upon questions of law only, the facts having been examined and no error found therein.