Voorhis v. . Mayor

Folger, J. Two things are conceded by the appellant which materially narrow the limit of consideration of the *502 case. He concedes that the work for which he claims to recover is not extra work, and therefore, that if he may recover for it it is because it is stipulated for in the contract. He concedes that if he had excavated the rock upon perpendicular lines, at just the width of the avenue and down to the grade, he would have performed his contract fully and could not have been compelled to have done more. It follows that the excavation of it with slopes was not within the terms of the contract, nor so in the contemplation of the parties as that the city cotild insist that it should be done, or the contractor insist upon doing it at the expense of the city. It is found by the learned referee to have been necessary to effect the excavation that the slopes should be made. But it was necessary as a means to an end, not as the end itself. It was more convenient, more easy, cheaper to the appellant, to blast as it were at random, than with strict observance of the exterior lines of width of the street. Unless the making of the slopes was called for by the terms of the contract, or was within the intention and contemplation of the parties, it is not to be said that because they were a necessity to the contractor as a mode of excavation, the city is to be charged with the cost of removing the rock from them, no more than with the expense of other means necessary for him to employ therein. Stress is laid by the appellant upon the fact that bis contract is Hot for excavating rock and earth but for regulating and grading the avenue ; that what he agreed to do was to regulate and grade the avenue, and that he was to be paid for all excavation needful to regulate and grade it; he claims that it was not graded until it was, at its surface, brought up or down to the established grade, by excavation or embankment, and that it was not regulated until the embankment was so sloped as that it would not slide away, and the excavation so sloped as that it would not slide in. Doubtless, that which he gives, is the meaning of grading the avenue; but if that which he gives, is the meaning of regulating the avenue, it is strange that the contract should have been specific as to the angle of slope of the embank *503 ment while it was silent as to the slope of excavation, leaving the latter to the whim or convenience of the contractor. But from the use of the word regulate in another part of the agreement, it does not seem that its meaning is other than that of the word grade. Thus, it is stipulated that, “ where there is not sufficient excavation to regulate the avenue the whole amount will be calculated as filling; ” which plainly means that where there is not sufficient material excavated to bring up to grade, when used as filling, the part of the avenue which in its natural state is below grade, the whole excavation will be estimated and paid for as filling. To regulate is, as to grade is, by digging down and by filling up — to make an even surface 100 feet in width at the plane determined upon by the city authorities. And the learned counsel for the appellant seems to agree in this interpretation, for it is said upon the points, that the clause of the contract stipulating for an exact slope of excavation of earth and of embankment of earth imposes a duty upon the contractor beyond the mere regulating and grading. It is also suggested that without so removing the rock as to prevent the sliding down of material upon the street it was impossible to shape the carriage-way and sidewalks according to the contract. The contract to properly shape the carriage-way and sidewalks does not include the keeping them free from obstructions afterward; it has reference to the grade and pitch, or curvature of them respectively. All that may be said comes to this, that the contractor cannot recover for work not done as part of the result stipulated for, unless it is named in or intended by the contract, and thereby required from him; that the excavation of these rock slopes was not named in or intended by the contract, and could not have been exacted from him by the city, and was no part of the result agreed for between them. There are other considerations to be drawn from other parts of the contract and from the circumstances surrounding it when executed and during the performance of it, which need not be adverted to. There were two opinions in the *504 court below which consider these things and put its decisions on a proper basis. The order should be affirmed. All concur. Order affirmed, and judgment absolute against plaintiff.