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Statement of the Case.
he did so, and that the measurements he returned are correct, then the plaintiffs are entitled to compensation accordingly for 37,256 cubic yards at 18 cents per cubic yard.” And to the giving of that instruction the defendant at the time excepted.
The court also gave to the jury the following instruction : “If Mr. Hurlburt did not make such agreement with these parties, but simply told them what mode of measurement he thought would be adopted, but that it would have to be left to the chief engineer in the end, it would follow that the work was done without any special agreement, and you will be compelled to estimate it upon its fair and reasonable worth. You will, then, consider from the proof how much excavation was made for the ditch, and how much more to make the embankment than if the continuous ditch had not been required, and for the number of yards of earth excavated in consequence, allow-18 cents per cubic yard. In this view the figures of Mr. Hurlburt, though relevant, would not be conclusive as evidence. If he made the agreement, as the plaintiffs claim he did, and his estimates were correct, that is an end of the question. If he did not make the agreement and the question was left open, then you must determine the number of yards excavated for the ditch upon the proof and allow accordingly the contract price of 18 cents a yard."
The defendant at the time excepted to so much of that instruction as is in the following words, viz. : “If he made the agreement, as the plaintiffs claim he did, then that is an end of the question.”
The defendant requested the court, in writing, to give to the jury the following instruction, viz.: “As to the ditch claimed by plaintiffs to have been made by them on the easterly side of the railroad of defendant, the plaintiffs are entitled to recover only for so much excavation as was actually done for the purpose of making such ditch, excluding any portion of the borrow-pits dug exclusively for the purpose of making the embankments, and that the jury can find for plaintiffs only the contract price of 18 cents per cubic yard for the excavation, which they may find from the evidence was so made for
Statement of the Case.
the purpose of making such ditch.” But the court refused to give that instruction; whereupon the defendant at the time excepted.
As to the claim of the defendants in error for a price extra to the original contract for the trestles built by them the court gave to the jury the following instructions: “The next item is the piles in the bridges. The contract price for piles is 30 cents per lineal foot. The profile and specifications, as originally drawn, or as they now stand, show considerable trestle work, and show generally highway crossings across the track at different places, but there is no statement in the specifications or in the profile with respect to what kind of crossing it shall be, whether of earth or of timber. There is a dispute between the parties arising out of this fact upon the question whether these bridges, made for the purpose of carrying highways over the embankment, are within the contract. The contract in that respect is ambiguous. The court, looking at the contract, cannot say what kind of crossing was intended. There is no proof of custom in this case sufficient to settle this point. We are therefore left to the construction which the contractors themselves have adopted, as shown by their conduct under the contract. When parties have made an ambiguous contract and have acted under it, and their joint actions show their understanding of it, courts and juries will follow the construction thus indicated. In this case the evidence shows that in 'respect to 2100 feet, in round numbers, the plaintiffs themselves treated the piles as coming within the terms of the contract in respect to price by receipting for that price upon the estimates. There has been evidence before
I cannot rehearse it as to what was said between the engineer of defendant and plaintiffs at the time this work was done. Perhaps the plaintiffs made some protest against doing this work at the price stated, but, nevertheless, they went on and did the work under that price and receipted for it, and I think the jury should accept that as conclusive upon that point. A subordinate engineer, working in belralf of a corporation, as Mr. Hurlburt was, has no right to waive the effect of receiving pay upon monthly estimates under a con
Statement of the Case.
tract like this. Such a contract would have but little force or value if a subordinate agent has the power to waive the terms, and this contract declares the estimates made by the engineer and furnished to the parties to be final, except for fraud or mistake. If the defendant had been an individual instead of a corporation he could have been there in person and waived the contract by saying we will leave that open; we will not make that conclusive; but I instruct you that this subordinate agent, Mr. Hurlburt, working for the bridge company, a corporation whose affairs must have been conducted by agents appointed to act for it - Mr. Hurlburt acting in this capacity — bould not waive this stipulation in the contract, that the monthly and final estimates should be conclusive. Therefore, in respect to the piling included in the estimate, about 2100 lineal feet, plaintiffs have precluded themselves from claiming extra pay. In respect to the work on the embankment, the act of accepting pay at the contract price raises a presumption that that was the proper price for the whole amount, and, in the absence of proof to the contrary, the contract price should govern ; but the presumption is not conclusive as to the 700 feet of piling not in the estimates, and if you find upon the proof that there was an agreement between plaintiffs and Mr. Hurlburt that these piles should be paid for at what they were reasonably worth, and not by the contract price, you may allow the reasonable value as shown by the proof on the subject."
The defendant at the time excepted to so much of that instruction as is contained in the following words, viz. : “But the presumption is not conclusive as to the 700 feet of piling not in the estimates, and if you find upon the proof that there was an agreement between plaintiffs and Mr. Hurlburt that these piles should be paid for at what they were reasonably worth, and not by the contract price, you may allow the reasonable value as shown by the proof on the subject.”
The defendant in writing requested the court to give the jury the following instruction, viz.: “Where any of the work done by plaintiffs and sued for in their complaint has been included in any of the monthly estimates of such work read to
Opinion of the Court.
them, and such work is therein valued at the contract price, such fact is conclusive evidence that such work was done under the contract and the prices fixed there final and conclusive."
But the court refused to give that instruction; to which ruling of the court the defendant at the time excepted.
It was claimed that, by reason of those instructions, the jury were authorized to find, and did find, for the defendants in error, for the alleged ditch, five thousand six hundred and thirty-six dollars and fifty-five cents, and for the piling eight hundred and fifty dollars, in excess of any rightful claim they bad; and to that extent the plaintiff in error, which was the defendant below, averred the verdict to be erroneous.
The verdict of the jury upon which the judgment was ren. dered was for $13,470 in favor of the defendants in error.
The assignments of error were: (1) That the court erred ir refusing to charge the jury in behalf of the defendant below as stated; and (2) that the court erred in those parts of the charge given, which were objected to by the defendant below! as stated.
Mr. S. B. Vance (with whom was Mr. James M. Shackelford on the brief) for plaintiff in error.
Mr. Curran A. De Bruler (with whom was Mr. Alexander Gilchrist and Mr. Daniel B. Kumler, on the brief) for defendants in error.
MR. JUSTICE LAMAR, after stating the case as above, de-, livered the opinion of the court.
The main questions to be determined in the first branch of this case are these :
(1) Did the modification of the original specifications and profile, made in August, 1884, fall within the original con tract, or did it create a feature in the work to be done, so different from that originally contracted for as to put the defendants in error in a position to make as to that feature a new contract ?
Opinion of the Court.
(2) Did the engineer, Hurlburt, have authority to make such new contract ?
(3) Did the court err in refusing to charge, as prayed, “that the plaintiffs [below] are entitled to recover only for so much excavation as was actually done for the purpose of making such ditch, excluding any portion of the borrow-pits dug exclusively for the purpose of making the embankments”?
We shall briefly consider those questions seriatim.
First. A careful examination of the specifications and profile, and of the testimony in the case, all set forth in the billş of exceptiops, satisfies us that the requirement to construct a continuous drainage ditch parallel to the embankment, four and one-third miles long, and of the dimensions ordered, did create a new problem in the work not covered by the original contract. The ditch was' required to have a fall of nearly two feet to the mile; to be two feet wide at the bottom at one end, and to increase in size to six-feet bottom width at the other end; and throughout, the sides were required to be scaled one and one-half foot horizontal measure to one foot perpendicular. The testimony shows that' in one portion, at least, it was nine, feet deep. It was made to drain off the water from the prescribed area, and to take the place of the county ditches. On this point McGrath, one of the defendants in error, testified that “to make the borrow-pits serve for a ditch it was necessary to haul the earth from the high ground, where the embankment was low, to the low grounds, where the embankment was high, whereas bút for the ditch, the earth from the embankment would have been taken directly from the sides; that this in many places necessitated a longer haul of earth, and increased the cost of the embankment."
Wasson, who was a sub-contractor, testified that before the change was made he “had taken earth from borrow-pits about twenty inches deep, and afterwards had to dig to the depth of nine feet to make the ditch, and was required to haul this extra excavation, some of it six hundred feet."
Robinson testified that “if the work was changed so as to require a continuous ditch, it could not be done as cheaply as