Henderson Bridge Company v. McGrath/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 contract, 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? (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 briel y consider those questions seriatim.

1. A careful examination of the specifications and profile, and of the testimony in the case, all set forth in the bills of exceptions, 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 but for the ditch the earth for 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 subcontractor, testified that before the change was made he 'had taken earth from borrow-pits about twenty inches deep, an 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 it could if done as provided for in the specifications; because where the embankment would be low you would have to make a shallow borrow-pit, and in making a continuous ditch you would have to deepen that borrow-pit to bring it to the ditch level, and would have to carry the dirt forward, necessitating a haul. There was no continuous ditch contemplated in the profile of the work.'

Fisher, a witness for defendants in error, testified that 'he was a civil engineer of thirty-five years' experience, and largely as railroad engineer. If the specifications provided that the earth for embankment should be borrowed equally from both sides, and then a continuous ditch should be required to be made on one side of the embankment, it would necessitate a greater haul, and would be more expensive. In consequence of the ditch, a greater amount of earth would have to be taken from the side on which the ditch is made. One cannot work to such an advantage in a narrow ditch as in a broad borrow-pit. The deeper you go, the harder the earth is to work.' Outside of the testimony of the witnesses, it is manifest that to dig earth on a surface rolling and broken, as the profile shows the surface to have been in this instance, for the sole purpose of constructing a level embankment, and without regard to the depth or extent or level of the pits thereby made, is a very different problem from the digging with the double view of the construction of such an embankment, and the making of a continuous ditch with prescribed directions and uniform bottom level for a length of more than four miles. It is true that, as the plaintiff in error says, the profile shows ditching in these same sections, covered by the original contract, to the amount of 4,660 cubic yards; but it also is true that those ditches were of a very different character, and imposed no such burden on the contractor as did the one in question. Indeed, the plaintiff in error itself treated the modification as a serious change, and especially so considered the ditch, before the controversy arose. In the correspondence between the two engineers of the company, which determined on it, it is spoken of as a new system.

2. We also think the engineer, Hurlburt, had authority to mak a new contract for the ditching. The plaintiff in error insists that a subordinate engineer has no such authority by virtue of his employment. That may be conceded, but it is not the ground assumed by the defendants in error. They contend that Hurlburt was specially authorized to make the contract, and support that position by quoting the second engineer Nichols, who says 'that the plan of drainage suggested in my letter to Mr. Vaughan was accepted by him, and Mr. Hurlburt was directed to have it carried out.' This view is fortified by the fact that in Vaughan's letter to Nichols, whereby the proposed changes were sanctioned, (16th of August, 1884,) and numerous items of adjustment and arrangement made necessary by such changes suggested, Vaughan himself clearly recognized the situation as one admitting of new terms with the contractors. He wrote, inter alia, of the change: 'This solid bank business,' he called it, 'we might get a low rate for extra earth in consideration of the same.' In Damon v. Granby, 2 Pick. 345, the inhabitants of the town of Granby had voted that certain persons (13 in nunber) should be a committee to procure a master builder, and superintend the building of a meeting-house for the town. On the trial of the case, (which was an action of debt by the builder of the meeting-house on the contract made with the committee,) the defendants objected that the superintending committee had no authority to contract for the building of the house. The court held that the vote of the inhabitants gave to this committee the authority to enter into the contract. 'To superintend the building of the house,' says the court, 'includes the power to make the necessary contracts,' etc. See, also, Story, Ag. § 79.

3. Nor do we think the court below erred in refusing to charge the jury that the defendants in error were only entitled to recover for such excavation as was actually done for the purpose of making such ditch, as distinguished from such portion of the ideal ditch as coincided in space with the borrow-pits, as portions thereof. In some cases, nay, in most cases, that would be a proper charge, perhaps, but not in this case. Here the plaintiffs below claimed before the jury, as a matter of fact, that they held a valid contract with the defendant below, by the terms of which they were entitled to pay for the whole volume of the ditch, (calling it 'imaginary' in part makes no difference,) from the obttom up to the original ground surface through its whole length: and that, whether said volume coincided with the spaces of borrow-pits or not. It was for the jury to say whether such contract did in fact exist. It was not for the court to assume and instruct the jury as a matter of law that it did not exist. Such a contract was not legally impossible. It was not claimed that the contractors defrauded the company, or in any way took advantage of it; and the basis of measurement, even if artificial and to an extent 'imaginary,' is not legally unreasonable, in view of the testimony of the witnesses as to the onerous and complicated labors of such a ditch. As a substitute and equivalent for all the items of demand,-in increased volume of excavation, increased hauls, increased hardness of earth to be worked, etc.,-it may have been a very proper system. We cannot say that it was not.

As to the second branch of the case, viz., that in respect to the piling, it is objected by the plaintiff in error that the instruction of the court was erroneous, for the following reasons: First. Because, in speaking of the 700 feet still not paid for, the court said: '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,' etc.; while there was no evidence tending to show that Hurlburt made the agreement therein supposed. But there was such evidence. Ryan, one of the plaintiffs below, had testified that 'we had no contract for this work, and before we began it I had a conversation with Mr. Hurlburt ao ut it. I wanted to know what we would be paid for it, and he said that Mr. Vaughan would do what was right.' This was claimed to be a contract for reasonable compensation. It was for the jury to say whether the conversation was with a contractual intent or not. The court had no right to assume as a matter of law that it was not, and refuse to charge on that aspect of the case. Second. Because Hurlburt had no authority to make a contract in reference to this matter. But the contract spoken of, being for a compensation on a quantummeruit, and not for a specified price, it is immaterial whether Hurlburt had such an authority or not. If, as the representative of the company, he had made no express promise to pay, the law would imply one. There is no question as to his power to direct the work, and no claim that he exceeded his authority in directing the crossings to be made of thestle and pile work. Such being the case, we do not consider it necessary to discuss the abstract question of whether the language used by the court was technically accurate as applied to the case; if it was not, there was yet no material error,-none that could have injured the defense. We do not think that the acceptance of 30 cents for some of the trestles precluded the plaintiffs as to the value of others. The judgment of the court below is affirmed.