Miller v. McKeesport & Wilmerding Railway Co.

Opinion by Mr. Justice McCollum, The contract required the plaintiffs to furnish the materials-for and build in a good, substantial and workmanlike manner, an electric railway over and upon a roadbed excavated and prepared by the defendant. It called for the construction of a railway in the manner and under the conditions “specified therein,” and authorized an inspection of the materials and work-by the engineers the defendant might employ or appoint for that purpose. The ties to be used in the construction of the railway were to be delivered by the defendant along the line of it. There was no express provision in the contract in regard to ballasting the road. The want of it led to this appeal. The defendant claimed that the plaintiffs were bound’by the contract to ballast it, while they claimed, and the court held, that they were not. The defendant offered to prove by the testimony of experts the meaning of the words “ excavated and prepared,” as applied to the roadbed, and used in the contract, but the offer was rejected on the ground that there was no ambiguity in them or arising from their use. These are the rulings of which the defendant complains. It is not denied that it is essential to the construction of a substantial railway that it should be well ballasted. But the court thought that inasmuch as this work was not expressly provided for in any of the plaintiffs’ covenants it was not chargeable to them. The court did not expressly say the defendant was bound to do the work, but it said there was nothing in the contract “ limiting the defendant to simply excavating and preparing the roadbed.” While it seemed to recognize the duty of ballasting the road as imposed by the contract, it expressly decided that it was nob laid by the contract upon the plaintiffs. It is clear that the defendant was not bound by the contract to ballast the road unless the ballast1 [355] ing of it was included in its covenant to prepare tbe roadbed! If the defendant was not bound to ballast it we have, under the ruling of the court below, a contract in which neither party is, required to do so, although the plaintiffs expressly agreed to furnish the materials and build the railway in a good, substantial and workmanlike manner and deliver it to the defendant “complete and ready for operation.” Manifestly, the parties contemplated the construction and completion of a good and substantial railway, and supposed they had contracted for one. All that the contract required the defendant to do was to prepare the roadbed and deliver the ties while the plaintiffs were required bjr it to furnish the materials and perform the work necessary to the construction and completion of the railway “ ready for operation.” We think the defendant should have been permitted to show by the testimony of experts the meaning of the words “ excavated and prepared ” as applied to the roadbed and used in the contract. The offer to show it was directly in line with Mc-Donough v. Jolly Bros., 165 Pa. 542. The specifications of error are sustained. Judgment reversed and venire facias de novo awarded.