The action is based upon a written contract between the defendant and one Engeman, providing for the construction by Engeman of reinforced concrete retaining walls and other work in *Page 124 connection with the St. George ferry approach at St. George, Staten Island. The plaintiff is the assignee of Engeman. The provisions and the performance of the contract necessitated the excavation of the earth, hard pan and rock within a designated space. Engeman was to be paid $3.00 for each cubic yard of such excavation. After the contract was entered into and before Engeman began its performance or entered upon the premises, the Baltimore and Ohio Railroad Company, working on abutting property, removed and carried away 1,175 cubic yards of the soft earth included in the material to be excavated. The railroad company was a stranger to the contracting parties, neither of whom took any step to prevent it from or compensated it for removing the earth. The defendant upon its acceptance of the performance of the contract refused to pay the plaintiff for the excavating by the railroad company upon the ground that it inured to the benefit of the defendant, and Engeman or his assignee was entitled to be paid only for the cubic yards remaining after it was done. The action is to recover the sum so withheld by the defendant, and the judgment of the trial court dismissing the complaint upon the merits has been unanimously affirmed by the Appellate Division.
The contractual obligation and undertaking of Engeman was (with the exception considered below) completely fulfilled. The excavation for the retaining walls and their foundations was made within the lines fixed by the contract to the depth prescribed by it. The retaining walls were erected and the other work done under and pursuant to the contract and the defendant had accepted the entire work as a performance of the contract. A finding of the trial court is: "That the said work done by the plaintiff and its said assignor was accepted by the defendant as a performance of the contract." Neither the plaintiff nor the defendant contends that the act of the railroad company was that of the defendant whereby the defendant breached the contract by either barring *Page 125 the plaintiff or its assignor from access to and possession of the place upon which the work was to be done or by doing the work it had contracted to Engeman. The contract did not prescribe the method, means or instruments by or through which the excavation should be effected and the work completed; nor did it hire Engeman to excavate at $3.00 for each cubic yard he removed or expressly or by implication or through its nature require that he personally should make the excavation. It mattered not to the defendant by whom or how the excavation was done within the requirements of the contract. It contracted for the retaining walls and the other improvements, and the compensation for the excavation was in fact a part compensation for the production of them. In case the railroad company constructing improvements upon the contiguous property, desirous of a speedy excavation of the space in question or through other motive, or a body of the friends of Engeman through generosity, aided gratuitously in the excavation or in getting together and mixing the materials for the concrete walls, there is no principle known to the law or within the rules of fair and honest dealing which would justify or permit the defendant to refuse for such reason to pay Engeman the contracted price; and the fact that the railroad company through mistake or an undisclosed reason and without the consent of Engeman or the plaintiff and as a mere volunteer, uncompensated by the plaintiff, made the excavation does not create or evoke such a principle. The performance of a contract through an agency or means not within the contemplation of the contracting parties when the contract was entered into is not a breach of the contract or a sound reason for withholding any part of the contracted compensation. The fact that the railroad company excavated as it did did not warrant the refusal of the defendant to pay the plaintiff for excavating the 1,175 cubic yards. *Page 126
The defendant urges a second fact as a justification of its refusal to pay the plaintiff. The contract required that all earth excavated should be placed behind the retaining walls, and the 1,175 yards of earth excavated by the railroad company were not so placed but were carted away by the company. During their removal the defendant was in possession of the land upon which the work was to be done. It had not yet been turned over to Engeman or the plaintiff, neither of whom had entered upon it or possessed the right to interfere with or to control or protect it. The defendant having the power so to do took no step to prevent the company from taking the earth away, and was not wronged by that which it permitted and through its inaction and silence sanctioned. It could not permit a third party to dispose of the removed earth in such a way as to make plaintiff's performance of his duty impossible and then defeat plaintiff's recovery by asserting his non-performance. That would work a fraudulent result from which the defendant is equitably estopped. It alone having the right, it was in duty bound to protect, as against third parties, the plaintiff's possibility of performance or to thereafter accept, in the action by the plaintiff for the contract price, his non-performance as performance.
The defendant urges still a third ground as a support for its judgment. The engineer of the defendant, in his final certificate that the work was completed, excluded the computation of the excavation of the 1,175 cubic yards, upon the ground that the plaintiff was not entitled to compensation therefor, because, according to the construction given the contract by the engineer, such excavation work done by the railroad company inured to the benefit of the defendant and not to the benefit of the plaintiff.
The view taken by the engineer was erroneous. The performance of the contract entitled the plaintiff to the compensation it provided, and the right of the plaintiff *Page 127 to recover is not barred by the omission from the final certificate, through the erroneous construction of the contract by the engineer, of the work, performance of which is the basis of the recovery. (Burke v. Mayor, etc., of N.Y., 7 App. Div. 128. )
The conclusions of law are not supported by the findings, and the judgment should be reversed and a new trial ordered, with costs to abide the event.
HAIGHT, WILLARD BARTLETT and CHASE, JJ., concur with CULLEN, Ch. J.; GRAY and WERNER, JJ., concur with COLLIN, J.
Judgment reversed, etc.