Submitted April 5, 1911
Decided April 25, 1911
John C. Tomlinson, John C. Tomlinson, Jr., and Theodore E. Tomlinson for appellants.
Archibald R. Watson, Corporation Counsel ( Theodore Connoly and Clarence L. Barber of counsel), for respondent.
The principal question of law, which has survived the affirmance of the judgment and which is presented upon this appeal, concerns the validity of the contract between the city and Delli Paoli. The appellants argue that it was "unilateral and void for lack of mutuality." It is insisted that the instrument sued upon as the contract contains no covenant on the part of the city and imposes no obligation upon it. Of course, if it is the fact that the city had not bound itself to do anything, which, as an obligation, was enforceable by Delli Paoli, then the instrument lacked an essential element of a contract. Such a contract must be obligatory upon both parties, in the sense that their promises are concurrent and enforceable by either. If in this instrument there existed but the promise on the part of Delli Paoli and there was no agreement on the part of the city to deliver its refuse at the "dumps" for the contractor to pick over, then the appellants' objection would be sound. It is not true, however, that the city came under no obligation to Delli Paoli. In reading a contract, we are not, necessarily, limited to its exact words in interpreting its obligations; we are to consider what its language implies as the intention of the parties. This contract contains an express agreement of the city that the contractor, Delli Paoli, "shall have the privilege of picking over all refuse at the dumps, including paper, rags, wood and metal objects * * * and shall have the right to appropriate to his own use the materials." There can be no doubt that the city thereby agreed to grant to him the privilege mentioned and the property in the materials, in consideration of the weekly payments he had promised to make. So much is clear; but it is equally clear that there was a promise on the part of the city to deliver all the refuse gathered by its street cleaning department at certain established dumps. This promise is to be implied from all that entered into the contract; for that included the advertised proposals for bids for the privilege specified and the specifications for doing the work. By its charter, the city was obliged to sweep and to clean its streets and a department was constituted for the purpose, upon which was imposed the duty to perform that work and to remove the street sweepings, or refuse, through contracts, which the commissioner was empowered to make. (Greater New York Charter, [L. 1901, ch. 466] sections 534, 539, 541, 544, 546.) When, therefore, the commissioner advertised for bids for the privilege of picking over the refuse at the dumps of the department, "as enumerated," and the contract granted it for the same dumps, the law, necessarily, will imply a covenant by the city to deliver all of its refuse gathered from street cleaning at those dumps, even if exact words to that effect are wanting. It is not a case of an omission by the parties, which courts will not feel justified in supplying; it is a case where the language used by them shows that an additional, or correlative, covenant was intended, which the courts should, and will, supply. The agreement of the city that its street refuse should be delivered at the dumps enumerated was indispensable to the effectuation of the contract and, for that reason, it will be implied. Had the city defaulted in that respect, Delli Paoli would not have been without his clear remedy for a breach of the covenant.
I entertain no doubt as to the contract being valid and that it was within the power of the street cleaning department to make. The appellants argue that it was unauthorized, for being in excess of the powers of the municipality. If the provision of the charter, empowering the commissioner of street cleaning to enter into contracts for the final disposition of the street cleanings, ashes, or garbage when collected, (Section 544), did not suffice as authority, I think the municipality possessed the incidental, if not inherent, power to make the contract. ( Ketchum v. City of Buffalo, 14 N.Y. 356.) But a quite sufficient answer is that the appellants are estopped from questioning the validity of the contract upon the ground mentioned, after Delli Paoli has had the benefit of its provisions. ( Mayor, etc., of N.Y., v. Sonneborn, 113 N.Y. 423. )
I advise the affirmance of the judgment.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment affirmed, with costs.