New-York tribune., 1876-06-20

oures s to hold that stephens Gale Danson and Bel
den have done no hing which gives cause of action
the state we must necessarily be confined the
rule iu OF the same conduct and acts com
stands today mtfcrinc the Jaw which must control our
action regari to all these parties, and when we re,
IPeople agt stephens and Others, 81 n y, 3oS, sec
800, 3l0), agreed for consideration 70 be bound 6y
Judgment Of this court the estOppc OF the judgment Is
supplemented by the agreement
SECOND GROUND FOR THE MOTION.
As for the second ground of the motion for nonsut
the counsel for the people contend that when contract
for work. labor and services had been procured by an
unlawful combination to put mp the price, the party ior
whom the work done with full knowledge OF such
combination require and demand its performance vol
unfairly and with full knowledge pay the stipulated
price and then action recover his damages which,
OF course Is the difference between the price when the
contract calls for and the sum for when u couiu
have been let had such combination not exlsteu
principa Iy upon the authority OF Allare ag: Whitney
Il il 4s4) In that case Alaire had hireu OF n Mmy ny
certain premises in the city OF New-l 9r9 anu wncn o
induced to lease upon the "frandneht repr@essnn @
tion OF Whitney that the lot ne t the
other parcel OF land wcn turel OUT 10 @ ~
corporation OF the City of NewYork Allare psco'eI9a
the fraud, but did not repudiate the contract o m
Seng sn for the rent reserved in the
compelled 10 pay for the use of the premises mise te
possession Of which the lease failed to secure me aag
sustained in the court OF last resort by ne
vote and so far as it eDuncates princlplc applicable 70
eXecuiory contracts is now of doubtful anthodliy.
Reed agt Randall C29 n Y 5l5J The q. NJ. Co. AIT.
Allen t53 y. Y, 515l Gurney agt Atlantic and Great
Ganiz go N. V, 5iOl.
There ls however q wide difference between the case
even exccuOry contract OF sale, when there Il an
expess that the goods shall be OF particular
quality and contract for work and labor TO be per
founded upon the suppositon that the 0her o he
labor at the best price to be obtained after Iar
competition, when in fact 1t was at price which had
been liked by an nrawal combination Which &
Judge Peckham, Day agt Pool (j2 \: Y, 1l6), in
which, by majority Of one, the Court held that IN an
exccuory contract the buyer might retain ms gcods
and rely upon the warranty, but suce aSa Iesloheu
Ia some extent in OF the eases above cited what
plausbillty there may be III hOlnS tbat person
may rely upon express agreement to make good any
deficiency in an article sold that reasouinS
ali' An ,h1, n "s with wGeh ifGS We are dealing
II the supposition that price which Is the result OF
t1ined. and The deception which that inlposGs which
gives tho right TO sue When dhe parry Is nor
but enters into the agreement win per.ot n
that others willing 10 take the WORK ~ less price
& WeIsby, S3, 5 and s H. r. CO. at. Rove l-l WENDELL
2i). and Hurd agt. Brewster q Paige, 53l hill,
There !s another st more marked distinction wnich
though involved in the argum.nt alrcad! mace snonn
perhaps, he separately and distinctly stated IN He ease
10 be Of certain quality, the buyer Simply acceptsas
pro td,.0 fulhmcnt what tue seller III Tue poiss0.u
make good the deficiency anu this Is also true OF NE
ney agt. Alaire In neither Is anything cone wniel
IN other the position of ordering the further act
which accompshc, the injury. In NE one the party
which he had made positive dgree,l,nt IN 'na1 LOT or
future work and labor ne parry 10 p" i9 In te t
case before u.s. the injury Is accomplished l tne pefiur
"re ior ,yIici II stipulated refusal tho
only appropriate remedy with tho fument of lis
terms the damage i sustained
TIE STATES NEGLIGENCE.
By an examination of the various wellsnown facts in
the history OF the work under consideration 1t Is plainly
apparent that with entire knowledge the part of the
state the work was exccu ed. Year by year report
from the Canal Commissioner in charge declared the
sum due the contractors. Appropriations to pay
were regularly made by the Legislature, and
payments made by the officers WHO were charged
with that duty. The proof concusyey establishes tnat
when the contract executed the Contracting Boai
was not deceived by the suo,ion that the acceplei
bid the lowest price to BE- obtained after lr con- %
petition that the officers OF the state III charge OF ihe
work ami its Legislature, when It's execution
was required noT Tef re. a WmaaS SrST poWcr Of the
state with accurate and complete knowledge amtneu
the contract express law, and year by year placed thc
money OF IEo state hands Of its officers 10 be paid
herepon and That such money and every dollar OF 1t
has been paid. only without any mistake OF Facts
bmi with iull complete aud accurate Information.
with these facts fully proven has the state any re-
would be concluded IL NOT the STATE also oonc.ue@d e.
II Is that no act which ihe on. er OF the state ne
caIy PERFORM, can bind IL. But II VIII be argued that
int contracting board was Il incre machine, am
had no adsndi s9 stSi When ad nS are
made year by year. aud the money piScri III uiu'll
be discharged. discretion to refuse payment Nherc
lie claimant /, not ncstly and Justly entitled 70 nj
Tno states officers were not deceived IN making the
contracts agents not deceived IN ordering us
pcIformanac; ts law-makng power was not
deceived Ia making its appropriations 10 pay
the money earned according To It's terms;
and It's di,hursing officers not deceived
when such money was paid the contractors claiming
H. The contract has been signed. executed and com
uleed with full know ledge and wOud he prcpost.Tous
o hold that when the state has for i've long yeats, re-
rrd every act be done which has been done that
can nave auy rc,ss for action which 10 has itself COM
PEELED. ..,,