pletion of the work, the contractor, in an action based on the supplemental contract for extra work done and materials furnished, is not bound by the architect's decision that such work and materials were required by the plans and specifications.' When it is mutually agreed that the value of extra work shall be ascer tained by persons mutually chosen and in no other way, but the persons have never been chosen and no valuation has ever been made, the contractor in an action upon a quantum meruit may give other evidence of the value of the work done.' When the engineer is employed by the company and is given the direction of the work and the authority to estimate the work and determine questions pertaining to it, he is not the agent of the contractor, but the special agent of the company, and if the measurements and calculations made by the engineer or his assistants are not correct, and extra or unnecessary work and expenditure result, the loss ought not to fall on the contractor, but upon the company.** A failure to comply with a clause in a builder's contract providing that any dispute as to the true meaning of the drawings or specifications shall be decided by an architect, and as to the true value of extra work by arbitrators, is no defense to an action for services rendered under such contract where there is no allegation in the answer setting up such failure, that there was such a dispute, or that defendant ever offered or plaintiff refused to submit such matters as provided for.* † Extra work done under a contract providing for extra work must be carefully done, and the fact that the said extra work is done according to the plan and under the direction of the city engineer does not relieve the contractor from due care in the performance of the work.* 597. Provision that Questions and Doubts with Regard to Extras shall be Submitted to Arbitration. Clause: "Should any questions or disputes arise as to whether any work done is or is not included in the contract, or as to the value of any additional or extra work done, or any omissions made after the engineer or architect has given his final certificate in writing on completion of the contract, the same shall be referred to two arbitrators, one to be chosen by the owner or company, and the other by the contractors, and in case of disagreement, the two arbitrators shall appoint a third, and their award and decision, or that of any two of them, shall be final and conclusive, and binding upon all parties to this contract; the submission and reference to be in writing under the seal of the owner or company, and the hands and seals of the contractors, and duly witnessed, and the said award of the arbitrators or any two of them also to be in writing, duly signed, sealed and witnessed, and the award so made may, by any of the parties hereto, be made a rule of the supreme court of the state." 598. Provision that Disputes as to Extra Work shall be Referred. Clause: "Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by said architect, and his decision shall be final and corclusive; but should any dispute arise respecting the true value of the extra work or of the works omitted, the same shall be valued by two competent persons, one chosen by the owner, and the other by the builder, and these two shall have power to name an umpire whose decision shall be binding on all parties." * 599. Instances of Extra Work-Interpretation of Certain Terms and Expressions. In engineering and architectural work many ambiguities arise where the language employed by the parties is insufficient or inadequate to express definitely or fully their intention. Certain indefinite or ambiguous expressions commonly in use have been given certain constructions by our courts and form a precedent which is quite likely to be followed if they again come up for interpretation. The meaning given to such terms and clauses cannot fail to be interesting to the reader, and it is hoped that the insertion of them here may have a threefold value: First, to teach the reader to avoid the same and similar ambiguities in his own contracts; secondly, to give him the probable interpretation that they will receive; and thirdly, to assist him in the interpretation of other doubtful clauses. which may occur in his experience. 600. Work Not Specifically Mentioned in Contract. It is frequently held that a contractor is bound by his contract to do all and everything that is necessary to make his work reasonably effective for the purposes which it was intended to accomplish,' and this may be so even if every item and detail that are necessary to the completion are not specifically mentioned in the contract." Materials and work that are properly embraced in a structure, though not specifically mentioned in the specifications, cannot be charged for as extras. when the contract is to build and complete the structure. Thus under the head "carpenter and joiner" there were specified the scantling of the joists for the floors, the rafters and ridge and wall-pieces, but the flooring was not mentioned, and it was decided that no extra charge could be made for furnishing the floor-boards; that from the whole instrument it was clear that the contractor was to supply the necessary materials for the floor." The cellar and foundations have been held a part of the erection and 1 I., B. & W. Ry. Co. v. Adamson, 114 Ind. 282 1887]. Currier v. B. & M. R. R., 34 N. H. 498 [1857]. 3 Williams v Fitzmaurice, 3 H. & N. 844 [1858]; and see Emden's Law of Bldg, etc. 223; and La Chicotte v. Richmond Ry. & Tel. Co. (Sup.), 44 N. Y. Supp. 75. * As regards arbitrators and umpire, see Secs. 519-533, supra. construction of a building, sufficient to support a mechanic's lien;' and a contract for the construction of a wall at five dollars per cubic yard, which said nothing about the excavations, was held to include the excavations, and that the contractor was bound to make them without extra pay. But when the specifications called for a lining of coarse gravel in the rear of the wall and made no provision for payment, and there was no gravel near the work, and it had been agreed to substitute macadam material for the gravel, the contractor was permitted to recover extra compensation not only for the gravel lining but for the excavations for it.' A contract to grade and pave a street and to lay the stone curb as specified for a fixed price per lineal foot, was held to include the digging of the trench for the curbstone after the surface of street had been brought to the proper grade.' Although the only promise in a building contract is to furnish "all stock and materials mentioned in the specifications," it will include the erection of the building contemplated by the specifications, where such appears to have been its intent from provisions as to time of beginning the work, payments according to estimated value of the work and materials, and as to superintendence of architect." A contract to keep "the street bridges where crossed by street-car tracks in first-class order," has been held to mean to keep the whole bridge in repair. An agreement to quarry, burn, and deliver cement in a storehouse at a certain place, the stone to be taken from the company's quarry and in a manner so as not to endanger it, and a counter-agreement to pay a certain price per barrel for all cement delivered in such storehouse at times stated, was held to require the contractor to furnish the wood and coal to burn such cement." 601. Limits of Work Not Properly Defined. -A common source of ambiguity and trouble in railroad circles is the indiscriminate use of the words "road" and "track." It is not surprising that the same annoyance has found its way into the courts on several occasions. The question came up as early as 1855, under a contract to build a railroad between certain termini at a specific price or rate per mile, according to certain specifications. A dispute arose as to whether the fixed rate was per mile of track-i.e., the aggregate lengths of the main track, the side-tracks and the turnouts-or was per mile of road-bed. It was decided that the latter interpretation was the proper one, but apparently upon the ground that the contractor had received monthly payments on monthly estimates, and had made no claim. 1 Cristal v. Cochran (Pa), 23 Atl. Rep. 444. 2 Shipman v. Dist. of Colum., 119 U. S. 148, 703. Davis v Saginaw. 87 Mich 439. 4 White . McLaren (Mass.), 24 N. E. Rep 911 [1890]. State v. Canal & C. St. Ry. (La.), 10 So. Rep 940 [1892]. 6 Fresion V. Lawrence Cement Co. (Sup.), 30 N. Y. Supp. 144. for payment for such side-tracks, etc., and that such a practical construction of the contract concluded the contractor from setting up a different one.' The later cases have adopted the same interpretation in computing the number of miles of railroad specified as being between two points, and in determining the expense that several railroads should bear" in proportion to the length of the main track, or tracks or road," it was held in the latter case that the length intended was the measured distance between the two points and not the number of miles of track.' Under a contract to pay a certain amount per mile for the construction of a railroad, which is to be completed by a certain date, the contractor was held entitled to payment both for a temporary line, built around a difficult part of the route, to save time, and for the permanent line, built by a more direct, but more difficult, route.' A contract to construct the road-bed of a railroad between two cities named has been held to include all the road as indicated by their depot grounds, and that the contractor could not recover extra compensation for grading within the corporation limits of the villages or cities named, and that the contract was not satisfied by grading to the corporation limits." Under a like construction it has been held that work upon bridge foundations of a railroad is work done under a contract "to construct and complete all the grading, earth, rock, and masonry for the road-bed of the railroad from a place named to Kennebec river; the bridge being over the Kennebec river. Cattle-guards, water-tanks, stop-gaps, slides, sidings, and Y's, have been heid part of the complete construction of a railroad, which a contractor is bound to supply under a contract to build and complete the road, but not the rolling stock.' Earthworks at a price per cubic yard to be measured in the embankment have been held to include the filling in between the ties after the track. was laid, and that it was not embraced in the contract to lay the track." But under a contract to fill in a trestle under a railroad track which provides for compensation by the cubic yard of dirt, solid measure, the contractor was not allowed to recover for the space occupied by a brick culvert constructed by the company under the trestle." "Clearing land," in absence of words of limitation, has been held to mean the removing all the timber of every size, but not to include the taking out of stumps and roots." 1 Barker v. T. & B. R. Co., 27 Vt. 766 [1855]. Sulzbach v. Thompson's Admrs (U. S. Central Trust Co. v. Condon (C. C. A.), 67 Fed. Rep. 84. 5 Western Union R. Co. v. Smith, 75 Ill. 496 [1874]; semble, Mason v. Brooklyn C. & N. R. Co.. 35 Barb. 373 [1861]. Rogers v. Hogan. 58 Me 305 [1871]. Central Trust Co. v. Condon (C. C. A.) 67 Fed. Rep. 84. Suell Cottingham, 72 Ill. 161 [1874]. E. Tennessee. V. & G. Rv Co. v. Matthews (Ga.). 11 S. E. Rep. 841 [1890]. 10 Seavey v. Shurick (Ind.), 11 N. E. Rep. 597 [1887]. Where, by the terms of the contract, the work done under it was to be paid for partly in stock and partly in money, it was held that payment for extra work might be recovered in money.' When a contractor was to be paid "the cost of labor and materials, and a certain per cent. added thereto as profit," he was held entitled to the amounts paid to subcontractors, including their customary profits, and his per cent. thereof." An interesting case came up in the construction of the Northern Pacific railroad under a contract which provided that earthworks should be measured in excavation. An embankment was partly made from two adjacent road cuts which were measured, and it was completed with earth borrowed from ditches which were not measured. The rule was that when earthworks were measured in embankment 10 per cent. should be allowed for shrinkage. The volume of the embankment was 100,000 cubic yards; that of the road cuts 60,000 cubic yards. The contractor contended that his estimate for excavation from borrow-pits should be 110 per cent. of 100,000 cubic yards, less 60,000 cubic yards, or 50,000 cubic yards. The engineer's estimate was 100,000 cubic yards, less 60,000 cubic yards measured in cuts, which was 90 per cent. of the amount which would be required to finish embankment, which was 44,444 cubic yards. The company allowed only 110 per cent. of 100,000 less 60,000, or 44,000, which is 6000 cubic yards less than the contractor's claim, and 444 cubic yards less than the engineer's estimate. The lower court sustained the estimate of the company.' The case is instructive as showing the importance of trifles in interpreting a contract. 602. Estimates of Quantities of Work and Materials. A provision for an extra allowance in case "the aggregate amount of all materials encountered were increased over the preliminary estimate was held not to apply to an increase over and above the estimate of each kind of material, but to mean that the aggregate amount of all the kinds of materials should exceed the total estimate.* Under a contract to erect new buildings upon land covered by houses, which does not mention them nor the use of materials in them, the contractor becomes the owner of the materials upon taking possession and removing them, and can use them whenever and wherever he chose. If the owner does not provide for the use of the materials in the old buildings in the new, or does not remove them before the contractor takes possession under his contract, he waives his right to them and they belong to the contractor. The right to make alterations under a lease does not give right to materials taken out." 6 * Smith v. B. C. & M. R. R., 36 N. H. 459 [1858]. Hamilton Coogan, 28 N. Y. Supp. 21; accord, Ford v. St. L., K. & N. W. Ry. Co. 54 Iowa 723. Case not reported. 4 Smith v. B. C. & M. R. Co., 36 N. H. 458. Morgan v. Stevens. 6 Abb. New Cases 357 [1878]; compare Cooper v. Kane, 19 Wend. 386. "Agate v. Lowenbein, 57 N. Y. 604. * See Sec. 265, supra. |