Summary
In Error to the Circuit Court of the United States for the Southern District of Alabama.
On October 21, 1898, the parties to this action entered into a written contract, the provisions of which, so far as they are material for consideration herein, are substantially as follows:
“(1) That for and in consideration of tlie stun of one hundred and eighty-six thousand two hundred and seventy-two dollars and fifty cents ($18G,-272.00), said party of the second part agrees, obligates and binds himself to equip and construct a complete and perfect system of sewerage for tho city of Mobile, according to the specifications attached to, and forming a part of, this agreement. It being expressly understood and agreed that this agreement shall be construed and interpreted in connection with said specifications, the same being the basis upon which this agreement is founded.
“(2) It is further expressly understood and agreed l>y and between the parties to this agreement that, as set forth in the specifications hereto attached, all differences and disputes in reference to the work, materials, labor and transportation used, estimates for work done, or any other thing or mafrer whatsoever that may arise in reference to the construction of said sewerage system, shall be referred to the engineer of the party of-tlie first part, and that the decision of said engineer of tlie party of the first part shall be conclusive, final and binding upon the parties to this agreement.”
“(4) It is further expressly understood and agreed that all work, labor, materials and transportation, done or -furnished in constructing said sewerage system, shall be at tho in-ices stipulated in Schedule A attached to. the specifications annexed to this agreement, and which Schedule A is hereby made a part of this agreement and is to be signed together with said specifications by the mayor of said city of Mobile and by said party of tho second part. The engineer mentioned and so termed in this agreement is T. W. Njiehol of Mobile, Alabama, or his successor.
“(5) It is further expressly understood and agreed that the said party of the second part is to furnish all material of every kind, character and description, labor and transportation necessary to be used in the construction of said sewerage system ,at the prices named ip said Schedule A, which has, by the fourth paragraph or section of this agreement, been made a part of this agreement.
“(G) It is further expressly understood and agreed that on the 10th of each month first succeeding the commencement of the work and thereafter, the engineer shall render to tlie contractor an estimate of the work done, in accordance with the specifications,.less a deduction of ten (10) per cent; and after the contractor shall have produced efidenee that he has paid for all the material, labor and transportation entering into the work, or made satisfactory provision therefor, he~shall be paid the sum of such estimate. Should the contractor fail to produce such evidence to the engineer, then such, any, or all amounts due by him for material, transportation and labor will be deducted out of such estimates, and when the entire work under this contract -.and the specifications made a part thereof, shall have been completed to the entire satisfaction of the engineer, and said engineer shall have so certified in writing, then, sixty days thereafter, all or any balance due the said party of the second part, in this paragraph called the contractor, shall be paid, less any amounts incurred for failure to adequately prosecute the work, and provided the party of the second part shall produce e\ idence satisfactory to tho engineer that all claims for material, labor and transportation have been paid. The amount of one hundred an,d eiglity-six thousand two hundred and seventy-two dollars and fifty cents ($180,272.50) is intended to cover the entire cost of all the materials, labor and transportation in the complete and entire construction of the sewerage system for Mobile, Alabama, as shown in tho plans and specifications made a part hereof, and such changes as may be made hereafter by the engineer and accepted in writing by tlie said party of the second part. This amount, however, it is expressly understood and agreed, may be increased or diminished and will be finally determined by the detailed figures and prices shown in Schedule A, forming a part of this agreement It being the sense of this agreement that for increased work, tlie word ‘work’ including materials, labor and transportation, the party of the second part shall be paid at the prices named in Schedule A, and for any deduction in work, as above defined, the deductions shall be made at the prices named in Schedule A.”
i “(11) It is furtliov expressly understood and agreed that this agreement is not to be binding upon the parties hereto, unless the next General Assembly of tlio state of Alabama shall expressly authorize the authorities of the city of Mobile to Issue bonds of the city of Mobile in an amount of seven hundred and fifty thousand dollars ($750,000.00) to pay for the system of waterworks and also for the system of sewerage herein provided for, and said bonds shall have been sold by the city of Mobile.”
“(11) It is further expressly understood and agreed wherever there is a conflict between the specifications and this typewritten agreement, the terms and conditions of the typewritten agreement shall govern.”
Among the provisions of the “specifications for the construction of a system of sewerage for the city of Mobile,” the following appear:
“It is the intent of these specifications that the engineer’s decision in all matters relating to the work, the rendering of partial or final estimates, shall be final and binding. The engineer's estimate of quantities contained herein is understood to be approximate, which may be increased or diminished. Excavations below grade, wherever required by the engineer, shall be done by the contractor at the price per lineal foot stipulated for a sewer of that size and depth, said depth to be determined by the engineer. The contractor will be required to sign these specifications with contract, notwithstanding the contract identifies this instrument, the intent being that the contractor has fully understood the definitions contained therein.”
The complaint was filed March 28, 1901. It (unbraces seven counts. The first four counts of the complaint seek to recover, first, upon an account; second, upon an account stated; third, for merchandise, goods, and chattels sold by the plaintiff’ to the defendant; fourth, for work and labor done for the defendant by the plaintiff at his request — each for the amount of $44,4(54.28.
The fifth, sixth, and seventh counts of the complaint are substantially as follows:
‘■(5) The plaintiff claims of the defendant the further sum of twenty-seven thousand one hundred and fifty-eight and TO/ioo dollars, for that, heretofore, to wit, on the twenty-first day of October. 1898. the plaintiff and the defendant entered into a written contract, whereby the plaint iff agreed to construct for the defendant a certain system of sewers in the city of Mobile In accordance with certain plans and drawings which wore Hum at the office of the engineer in charge of said work at Mobile, Alabama, and by which said contract Hie city of Mobile undertook and agreed to pay the plaintiff for his work at a stipulated scale of prices set forth in a schedule attached to said contract ; and the plaintiff avers that, notwithstanding the agreement between the plaintiff and the defendant to the effect that said sewers should be constructed in accordance with the plans and drawings aforesaid. Hie said city of Mobile, subsequent to the execution of said contract, requested the plaintiff to lay the said sewer pipes at various and sundry places upon grades at variance with Hie said plans and drawings, and the plaintiff complied with this request, and the said city of Mobile agreed ami promised to paj, for such extra work and material at the reasonable value1 thereof; and the plaintiff avers that the reasonable value of the extra work and material required by said changes and furnished by the plaintiff is twenty-seven thousand one hundred and fifty-eight and to/ioo dollars, for which he sues.
"((5) The plaintiff claims of the defendant the further sum of two thousand nine hundred seventy-three and 3Vk>o dollars, for that, heretofore, to wit, on the 21st day of October, 1898. plaintiff and tile defendant entered into a writ ten contract whereby the plaintiff agreed to construct for the defendant a certain system of sewers in the city of Mobile in accordance with certain plans and drawings whi'-h were1 then and there at the office of the engineer in charge of said work at Mobile, Alabama, including the erection of certain manholes of the depth and"size required by said specifications, and by which said contract the city of -Mobile undertook and agreed to pay the plaintiff for this work at a stipulated, scale of prices set forth in the schedule attached to said contract;, and the plaintiff avers that, notwithstanding the agreement between the plaintiff and the defendant to the effect that the said sewers should be construct e;l in accordance with the plans and drawings aforesaid, the said city of Mobile, subsequent to Hie execution of said contract, requested this plaintiff to lay the said sewer pipes at various and sundry places upon grades at variance with the said plans and drawings, which change necessitated extra and additional work in making said manholes larger and deeper, and the plaintiff complied with this request, and the city of Mobile agreed and promised to pay for the said extra work and material at the reasonable value thereof; and the plaintiff avers that the reasonable value of said extra work and material upon said manholes required by said change and furnished by the plaintiff is two thousand nine hundred seventy-three and 89/100 dollars, for which he sues.
“(7) The plaintiff claims of the defendant the further sum of thirteen thousand nine hundred ninety dollars for the breach of an agreement entered into by it on, to wit, the 21st day of October, 1898, in substance as follows: that is to say, by which the plaintiff agreed to construct for the defendant a certain system of sewers in the city of Mobile according to certain plans and specifications made a part thereof, and such changes as might be made therein by the engineer in charge of said work, and accepted in writing by the plaintiff, and whereby the defendant agreed to pay the plaintiff for the equipment and construction of said system of sewerage at certain designated rates, which were fixed by a schedule of prices attached to said contract; and the plaintiff says that, although he was at all times ready and willing to have fully complied with the said contract upon his part, the defendant failed to comply with the following provisions thereof; that is to^say, that the defendant, without the written consent of' the plaintiff, abandoned the construction of twenty-seven and 9SApo miles of the said system, and declined to permit the plaintiff to construct the same, or to pay the plaintiff therefor, by reason of which the plaintiff was injured, in this: that the contract price for the construction of the said twenty-seven and 98Aoo miles exceeded the price at which the plaintiff, could have performed said work and furnished said material by the sum of thirteen thousand nine hundred and ninety dollars, for which the plaintiff now sues.”
Thé defendant, for answer to the complaint, said it is not guilty of the matters alleged therein, and, for second and third plea to the second, third, fourth, fifth, and sixth counts of the complaint, said that the sum of money claimed of the defendant for work and labor done, and for transportation and materials furnished, cannet be" recovered of the defendant, because the same was done and performed and furnished under a written contract, referring to the provisions thereof, which stipulated that the decision of the engineer should. be conclusive, final, and binding upon the parties to the agreement, and that the engineer, in his partial and final estmates of the work and labor done, and transportation and materials furnished, did pass upon and decide what was due the plaintiff for all of the same, and for all extra compensations due for larger and deeper manholes forming a part of said sewer system, and for all materials and transportation furnished, and the construction thereof, and that the defendant did pay to the plaintiff the full amount of all partial and final estimates due him, as certified by the engineer.
And, fourth, for further plea to the seventh count of the complaint, the defendant .said that the sum of money claimed thereunder could not be recovered under the terms of the written contract, as shown in sections 2 and 6 thereof, and under the provisions of the specifications to the effect that it is the intention thereof that the engineer’s decision in all matters relating to the work and the rendering of partial and final estimates shall be- final and binding, and that the engineer’s estimates of quantities contained therein is understood to be approximate, which may be increased or diminished; and the defendant avers that, under the provisions of the written contract, the defendant had a right to deduct the number of miles stated in the seventh count from defendant’s proposed sewerage system, and to abandon the construction of same, and not be liable to the plaintiff 'in this action for not allowing him to build the 27.98 miles of said sewerage system.
To these pleas the plaintiff demurred respectively, separately, and severally, presenting numerous grounds in support of his demurrer. These demurrers were all overruled. Thereupon the plaintiff replied to the pleas of the defendant. First, for answer to each of the pleas, the plaintiff takes issue thereon; second, he sets up, by reference to a marked exhibit, the written contract to which the pleas refer, and, continuing his replication, proceeded as follows: \
“And the plaintiff further avers that the plans and drawings referred to in said contract, and made a part thereof, were, as stated in said specifications, at the office of the said engineer, Mobile, Alabama, and showed upon their face over what territory and niton what grades the said sewerage system was to he constructed under said contract And the plaintiff further avers that, after the execution of said contract, the defendant, without the written consent of the plaintiff, materially (‘.hanged the grade of the said sewerage system in various and sundry places, so as to necessitate larger excavations of earth in addition to that called for by said written contract, and of a character which was rendered materially more expensive than the work provided for by said contract in the same locality, by reason of a. difference existing between the character of the soil at the depths provided by said plans as agreed upon between the said parties, and the character of the soil the removal of which was required by said changes, and the defendant thereby likewise necessitated the use of a large amount of bracing, and the use of a large, amount of material which were not required by the work as provided for by said contract, and requested the plaintiff to do the extra work required by said modifications, and agreed to pay the plaintiff therefor at the reasonable value thereof; and plaintiff avers that it is for the recovery of the difference between the reasonable value of the said work, and the amount which the plaintiff lias paid on account thereof, that this suit is brought.
“And for further answer to the second plea and also to the third plea by the defendant pleaded, separately and severally to each of said pleas, as pleaded to the sixth count of the complaint, the plaintiff says that the contract referred to in said plea, together with the specifications and the schedule of quantities and prices referred to in said contract, and which are thereto attached, were in words and figures as the same appear from a copy thereof which is hereto attached, marked ‘Exhibit A,’ made a part hereof, and now specially referred to and incorporated herein.
“And the plaintiff further avers that the plans and drawings referred to in said contract, and made a part, thereof, were, as stated in said specifications, at the office of the said engineer, Mobile, Alabama, and showed upon their face over what territory and upon what grades the said sewerage system was to be constructed under said contract.
“And the plaintiff avers that, after execution of said contract, the defendant, without the written consent of the plaintiff, materially changed the grade of said sewerage system in various and sundry places, at which the manholes therein referred to were to be erected, so as to necessitate the building of said manholes much deeper and larger than was required by said plans as provided in said contract, and so as to render the construction and material thereof materially more expensive than were the same provided for in said contract, by reason of the increased size and depth thereof, and by reason of a difference between the character of the soil, the removal of which was required by said changes, and the defendant requested the plaintiff to do the extra work required by said modificaÍions, and agreed to pay the plaintiff therefor at the reasonable value thereof; and the plaintiff avers that it is for the recovery of the difference between the reasonable value of said extra work and material, and the amount which the plaintiff has paid on account thereof, that this suit is brought.
“And for further replication to tile fourth plea by the defendant, pleaded to the seventh count of the complaint, the plaintiff says that the contract referred to in said plea, together with the specifications and the schedule of quantities and prices thereto attached, were in words and figures as the same appear from a copy thereof which is hereto attached, marked ‘Exhibit A,’ made a part hereof, aud now referred to; and the plaintiff avers that the plans and drawings referred to in said contract were on file in the office of the said engineer, Mobile, Alabama, and showed upon its face definitely the territory over which said sewerage' system was to bo constructed, and the grades thereof; and the plaintiff avers that the defendant, after the execution of said contract, and without the consent of the plaintiff, breached the said contract, in this: that the defendant, without the written consent of the plaintiff, abandoned the construction of twenty-seven and i>8/ioo miles of the said system, as shown by the said plans and drawings, and declined to permit the plaintiff to construct the same or to pay the plaintiff therefor, by reason of which the plaintiff was injured as alleged in said seventh count of the complaint.”
To the second, third, and fourth of these replications the defendant opposed numerous demurrers, among other grounds submitting that the replications failed to show that any work was done by the plaintiff not provided for in Schedule, A, or below the depths provided for in Schedule A, or to show what changes the defendant made in the grade at which work was done, or that the estimates of the work done by the plaintiff under the changed grade were passed upon and allowed by the engineer as provided for in the contract, or that the plaintiff objected to the changes in the grade, and, as additional grounds of demurrer to the fourth replication, that the replication shows that the defendant had a right to diminish the work, and shows that the plaintiff was to be paid for such work as be did, and fails to show that be did any work. \The demurrers to the second and third replications were overruled. The demurrer to "the fourth replication was sustained. Thereupon the plaintiff, with leave, amended the fourth replication by inserting between the words “and the grades thereof” and the words “and the plaintiff avers that the defendant,” the following, namely: “And that the sewerage system so to be constructed by the plaintiff under the terms of the contract consisted of more than twenty-seven miles of sewer, to wit, of eighty-six and 60/ioo miles of sewer, to be paid for under said contract per lineal foot stipulated therein.”
To the fourth replication, ns amended, the defendant submitted substantially the same demurrers that had been submitted originally, and, these being overruled, the defendant rejoined, joining issue upon tlie second, third, and fourth replications, and said:
“(2) And for further rejoinder to said second replication of the plaintiff, the defendant avers that, for all work done by the plaintiff in building said sewerage system for defendant, he received a written estimate made by the engineer provided for in said written contract, showing the amount of work done and the price, as provided for in said Schedule A, made a part of the said replication, and which said estimates the plaintiff presented to the defendant, and the defendant paid the plaintiff the amounts showed by such estimates, and which sums were accepted by the plaintiff, and receipted for by him.
“(3) And for further rejoinder to said second replication of tlie plaintiff, the defendant avers that, upon the completion of all work done by the plaintiff in building said sewerage system, the plaintiff received from the engineer a final estimate in writing showing the total work done by the plaintiff in building said sewerage system, and the prices therefor, as shown by Schedule A, made a part of said replication, and presented the same to the defendant, and was paid by the defendant the amount of said final estimate, which sum plaintiff received and receipted for.
“The defendant pleads to the third replication of the plaintiff the second and third rejoinder pleaded by it to said second replication.
“And now comes defendant, and ’for rejoinder to the fourth replication of the plaintiff, as amended, and avers thati from time to time during the progress of the building of said sewers by the plaintiff for the defendant, certain of the work contemplated by the plans was eliminated by the defendant, and the plaintiff was notified of such eliminations, and such eliminations were the same that plaintiff claims as a breach pf said contract, and that the plaintiff made no objections thereto, And said sewerage system was completed by the plaintiff without objection, with sucli ■ streets or portions of streets left out, and plaintiff never claimed at any time before the completion of said sewerage system that his consent in writing was necessary to such eliminations.
“And for further rejoinder to the fourth replication of the plaintiff, as amended, the defendant avers that the plaintiff, after said written contract was made, verbally assented to the eliminations by tlie defendant of, to wit, twenty-seven and ninety-eight one-hundredths miles of sewers, and such eliminations were the same that plaintiff claims constituted a breach of said contract.”
Entry of the final judgment in the case is in these words :
“The evidence and argument being concluded, the jury is now charged by the court, and the case submitted to them.
“And now comes the jury, and upon their oaths do state ‘that the jury finds' for the plaintiff, and assesses the damage at seventeen thousand fifty-eight and 58/i oo (if 17,058.58). December 10th, 3902. S. 55. Bellali, Foreman.’ ■
“It is therefore ordered and adjudged by the court that the said Thomas J. Shea do have and recover from the said city of Mobile the said sum of seventeen thousand fifty-eight and 58Aoo dollars ($17,058..’58), together with the costs of this suit, of which execution may be issued.”
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
