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App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. it is for the advantage of the surety. Non hæc in fædera veni is an answer in the mouth of the surety, from which the obligee can never extricate his case, however innocently or by whatever kind intention to all parties he may have been actuated.'”
These authorities abundantly establish the proposition that the contract of a surety is strictissimi juris, and that he may plead non hæc in fædera veni. The simple question is not whether there has been any material change in the contract to his injury without his consent, but whether there has been any substantial change in its terms.
So, also, it is elementary that any change in the times of payment named in the contract will discharge the surety. (Ducker v. Rapp, 67 N. Y. 464; Calvo v. Davies, 73 id. 211.)
In Halliday v. Hart (30 N. Y. 488) Judge Davies said : “A creditor, by giving time to the principal debtor, in equity destroys the obligation of the sureties, and a court of equity will grant an injunction to restrain a creditor, who has given further time to the principal, from bringing an action against the surety. This equitable doctrine the courts of law have applied to cases arising on promissory notes and bills of exchange.”
In order to arrive at a general understanding of the plaintiff's contention it may be stated that the original contract provided for the erection of a system of gang wells capable of supplying to the city 10,000,000 of gallons of water daily, and that several months later two other contracts were made, increasing the system by an addition capable of supplying 16,000,000 of gallons daily. These last two contracts are referred to in this opinion as the second contract, as they were executed on the same day, the one increasing the supply to 15,000,000 and the second to 16,000,000 of gallons.
I propose to state the radical differences which seem to exist between the original and the later contracts consecutively. First. The original contract provided for “a gang well, so called, amply sufficient to furnish, yield and supply ten millions of gallons of water” per day, the tubes to be of the same diameter as those driven by the firm for the city of Brooklyn, “complete in all parts with appurtenances, fixtures and connections, pipes, suction mains, receiver, and siphon caisson sufficient to gather and conduct the water from said well into said siphon caisson, from which it is to be SECOND DEPARTMENT, MARCH TERM, 1897. (Vol. 15. taken by the pumping engines to be furnished” by the firm, and which were, in another part of the contract, called a pump, to be “ of sufficient capacity to pump ten millions of gallons of water per day.”
The second contract provided for the construction, “at or adjoining the present Gang Well Station, * * * an addition to and modification of the Gang Well by them recently constructed and now nearly completed, amply sufficient to furnish, yield and supply five millions of gallons of water * * * per day * * * in addition to the ten millions of gallons already contracted for, tubes of the said addition to be of the same diameter, etc., * * * complete in all parts with appurtenances, fixtures, connections, pipes and suction mains, to be connected to and with the present plant as changed and enlarged, and to an enlarged receiver, sufficient to gather and conduct water (after such change and addition is made) from the said extended and enlarged well into one siphon caisson.”
Thus it appears that there was to be an addition to and modification of the gang well which would furnish a larger supply of water, with tubes to be connected to and with the present plant as changed and enlarged, and to an enlarged receiver, sufficient to hold the larger supply from the said extended and enlarged well. In other words, the receiver provided by the original contract was enlarged by the second contract, and while we have nothing to show how much larger the second receiver was to be, it may be assumed that while the first receiver was to be large enough to receive and conduct 10,000,000 of gallons, the enlarged receiver was to be of sufficient capacity to receive and conduct 16,000,000 gallons, i. e., sixty per cent larger.
The new receiver is termed “an enlarged receiver," and the well an “ enlarged well,” and thus the second contract declares that the gang well of the second contract was to be an enlarged gang well of the first contract. The second contract speaks of the new plant as “the present plant as changed and enlarged,” and of “changes in the present plant."
Besides, the first contract required a pump capable of pumping 10,000,000 gallons per day, and while nothing is specifically said in the second contract as to the size of the pump referred to therein, it may be easily inferred from its requirements that it was to be of sufficient capacity to pump the increased supply; all the more, that App. Div.) SECOND DEPARTMENT, MARCH TERM, 1897. the word appurtenances is used in both contracts, while the second contract requires that the appurtenances, etc., must be sufficient for gathering and conducting the 16,000,000 of gallons, and this supply under the second contract was to be taken up by the pumping engine to be furnished by the firm, and also required the approval of a new person not nanied in the first contract to the “change in present plant and the additions. The first contract has no provision for any approval of the construction by any one ; the result of the work, however, was to be tested as hereafter set forth.
The second contract states, “the change in present plant ana the additions, to be subject to the approval of the superintendent of the special water commission and substantially in accordance with the plan presented by him, to which reference is hereby made.”
We think this statement, of itself, shows that there was a clear and manifest change in the letter and spirit of the first contract, and that a new and different plan and plant were provided for, without any consultation of, or any notice or consent to the change on the part of the plaintiff.
Second. The first contract requires the whole work to be completed within six months from the date of its commencement, and “ whenever the works are so far completed as to authorize the same, a test thereof shall be begun and continued as hereinafter specified.” The test was to be made by the special water commission, which was to provide necessary engineers and assistants, competent to run the engines satisfactorily to its superintendent, and to furnish coal and other supplies necessary for that purpose, and pay all other necessary expenses for pumping continuously for three months. If the well should supply during that time 10,000,000 gallons of water daily, and of a certain specified quality, and if the commission should conclude not to abandon the scheme, then the test as to quantity should be continued for nine months more. The question of the quality of the water was to be submitted to and finally determined by Dr. Vander Veer. If it was decided that the water was not of a specified quality, or if the supply did not amount to 10,000,000 of gallons daily, then the commission had the right to abandon the enterprise, and the contractors were to refund to the city all moneys which they had received under the contract and were to have the right to remove their entire plant.
SECOND DEPARTMENT, MARCH TERM, 1897. (Vol. 15. The second contract, after providing for the additional 5,000,000 of gallons of water, contained this clause : “Whenever the works are so far completed as to authorize the same, a test shall be begun for quality and quantity, as provided for, and be continued in the same manner and for the same times as are provided for in the agreement for a supply of ten million gallons daily of July 6, 1887." It also provided that if the “entire plant fails to yield the full additional daily supply of five millions of gallons, but does yield the ten millions of gallons provided for in the original contract, or more than ten and less than fifteen millions of gallons, then all moneys paid to the parties of the second part, for and on account of this additional supply, over and above the rate of $12,000 per million gallons for the supply furnished, over and above ten millions of gallons daily, shall be applied as payment to them on the thirty-four per cent. reserve, as provided for in the original agreement, to be paid at the end of the twelve months' test for ten millions* gallons. In case the plant fails to yield the ten millions of gallons called for by the original contract, or if, for any reason, the said cominission is authorized under that contract to reject the plant, in such case the parties of the second part hereby agree to refund and pay back to the city any and all sums paid to them under this contract, with interest. * * * All questions relative to the execution of this contract, and not otherwise provided for, shall be passed upon by the superintendent, who shall decide all questions as to the execution of and performance of its conditions on the part of the parties of the second part, and the monthly estimates to be made by him shall be final and conclusive.”
Thus it appears that the second contract postponed the time of trial, and changed the method of testing and the times of the payments, as provided for in the first contract, and required the contractors to refund to the city moneys received by them, in a manner which was not contemplated in the first contract. These changes we hold to be material, and made without the consent of the plaintiff.
Third. The second contract provides that it shall not affect the first contract, except as to the limit therein prohibiting the pumping App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. of more than 10,000,000 of gallons per day, and that “the provisions of the present (first) contract shall, so far as applicable, and save as herein modified, apply to and be considered part of this contract."
We are able to ascertain what view was taken of the new contracts by the firm and by the city itself, the parties chiefly interested, to secure the enforcement of responsibility of the sureties for a failure to carry out the first contract. For, although the court may not substitute the opinion of the city for its own judgment, still, light is thereby thrown upon the subject. If an action were brought by the city directly against its bondsmen, the court might properly call the declarations of the city to its aid, and no reason is seen why the same rule should not prevail in this action, to which the city is a party, especially as it demands affirmative relief against the plaintiff, and to be subrogated to the rights of the two defendants Moore against the plaintiff upon the bond and mortgage.
The second contract uses the following phrases in reference to the first contract : “An addition to and modification of the gang well by them recently constructed and now nearly completed;” “enlarged receiver sufficient to gather and conduct the water (after such change and addition is made) from the said extended and enlarged well;" " the change in the present plant;" “ by reason of any changes herein provided for.” These words show that the contracting parties themselves declared that numerous changes were made in the plant and its appurtenances, and the general plan and its effect, and in the time and method of testing its efficiency, and the times and method of payment. Surely this resort to the declarations of the contracting parties themselves throws light upon their interpretation of the result of the second contract and its effect upon the first.
The city claimed and the learned court found that there was a breach of the first contract before the execution of the second; that thereby the liability of the sureties became fixed, and that the city thereafter, on August nineteeth, notified the Andrews that it determined to abandon the enterprise under both contracts.
But the city had no right to decide that there was a breach of the first contract until after the final tests had been made, and this was to take place under the terms of the second contract. It is true that the six months' term fixed for the completion of the first con