Sherman v. . the Mayor, C. of New-York

Jewett, Ch. J. The principal question in dispute between the parties is, whether the plaintiff had a right to show and recover the real value of excavating that portion of the trench composed of, “hard pan,” or “rock.” The plaintiff offered such evidence, which the referees admitted, although objected to. The plaintiff insists' that for excavating such portions of the trench no price was agreed upon between the parties, and that therefore he is entitled to show its value, and recover accordingly ; that the contract merely contemplates and provides for excavating common earth. The argument for the plaintiff is founded upon the idea that the term digging, as applied in the contract, means nothing beyond removing common earth, and does not include hard pan or rock, or at least the term is ambiguous as applied, and therefore may be explained by proof of facts and circumstances tending to show the sense in which it was used by the parties in this contract. I am unable to see any ground for such argument. The plaintiff expressly contracts to furnish all the materials and labor necessary to complete the excavation of the trench in the manner set forth, and as a full compensation for the excavation aforesaid—that is, for opening the trench described—it is agreed that he should be paid by the defendant, seven cents per cubic yard. The term “ for executing the digging,” in the paragraph describing the rate of compensation, is plainly used as synonymous with the term excavation in the paragraph immediately preceding it, and the same term is used in the specification • showing the manner in which the work was to be done. It may have been a hard and ill advised contract on the part *321 of the plaintiff. The substance to be dug out to make the trench, may have been composed of materials unexpected by him, rendering it worth tenfold more to do the work than he expected, but that furnishes no valid ground to say that the digging contracted for was not to be of any other material than common earth. The contract, under the head excavation, called for the opening of a trench of the prescribed width and depth, through whatever substances should be met with on the line agreed upon; and full compensation for that part of the work is agreed upon under the terms “ for executing the digging,” at the rate of seven cents per cubic yard. Therefore I am of opinion that the referees erred in admitting parol evidence of the value of that work. I think it is fixed by the written contract, which must, in this case, control the rate of compensation.' An objection was made by the defendant that it was not competent for the plaintiff to prove the number of yards excavated, in doing the work, by any other person than the engineer. It is supposed that the parties have, by their contract, confined the proof as to the amount of the work to the estimates of the defendants’ engineer. I do not think that its terms can receive such construction. The referees were right therefore in admitting the evidence offered as to the amount of the work. I am of opinion the judgment of the supreme court should be affirmed. Judgment affirmed.