Boynton v. Lynn Gas Light Co.

Loud, J. Two questions are, in this case, presented for our decision: First. Did the presiding judge construe correctly the written contract between the parties ? Second. Was his ruling right, relative to the claim that there was, between the parties, a paroi contract in addition to the written ? We can have no doubt upon either proposition. The plaintiffs contracted with the defendant to "build a substantial stone wharf. When the contract was executed, it was agreed between the parties that the line of the wharf upon land of the defendant was to measure in length two hundred feet; and the length of line of the wall upon a dock named in the contract was to be three hundred and fifty feet. The plaintiffs further agreed to dredge a dock and a basin, both to be of a certain depth at mean low-water, and a channel from and in continuation of the dock in- a direct line to the nearest deep water. The contract then provided for the mode in which the plaintiffs should dispose of the material taken from the dock, basin and channel by the dredging, the most important of which was that it should be deposited “ within the area of the wall above mentioned ” “ until the middle point of said area shall be twenty inches above the level of the cap-stone of the wharf, and of a uniform grade.” It was then further provided that if, after such filling of the wharf, there should be a surplus of material, it should be deposited by the plaintiffs in one of several designated places at the option of the defendant. For this work thus described, the defendant agreed to pay to the plaintiffs the sum of $38,225, in the mode prescribed by the contract. It will be observed that the price is a gross price for the whole work, including building of wall, excavation and filling. What price per running foot for building the wall and what price per [202] cubic yard for dredging the parties deemed reasonable we do not know, nor is it material to inquire. It is certain that, by the use of the word “ dredging,” it was understood by the parties that the plaintiffs were to dispose of the materials obtained by dredging. Indeed, the use of the word “ dredging ” implies this; the party dredging must in some proper mode dispose of the materials. Ordinarily, the contract designates the mode; but, whether so or not, it does in this case. The contract, however, contains this provision : “ Any addition to the wall above named to be paid for at the rate of twenty-four dollars for each running foot, and additional dredging at the rate of sixty cents per cubic yard.” The disagreement between the parties arises upon this clause. The plaintiffs say that this clause provides only for building the wall and the dredging, and that it does not provide for the disposition of the materials dredged; and that, inasmuch as the defendant required the materials to be placed within the walls of the wharf thus extended, and as it was a more expensive mode of disposing of the same, they are entitled to recover. The defendant contends that the disposition of the materials is implied in the contract to dredge, and that this clause of the contract is simply an agreement to do additional work of the same nature as that required in the contract, and in the same mode and subject to the same restriction and qualification as the original work, and that it provides for the possible contingency of building a larger wharf than was described in the contract. Whether it was optional with the plaintiffs to build the enlarged wharf by extending the walls, or whether they were bound by their contract to do so, if required by the defendant, it is immaterial to inquire, for the work has been done, and done upon the terms provided for in the contract, and there is no disagreement between the parties as to the price; they agree, and properly agree, that the price is provided for by the contract, to wit, twenty-four dollars per running foot for the wall, and sixty cents per cubic yard for the dredging; and the real question is whether, under that contract, or as this work was done, the defendant is liable to the plaintiffs to pay anything for the labor of depositing the materials produced by dredging within the walls of the wharf; and we can have no doubt that it is not thus lia [203] ble under the written contract. As before seen, the agreement to dredge, of its own force, implies the deposit of the materials dredged in some proper place; and, the parties having agreed by the contract where the materials were to be deposited, that agreement must apply to all the materials dredged under the contract. It will be observed that the lines of the wharf as originally designed were first described in the contract, and, after that, the provisional arrangement for enlarging the wharf, by extending the length of lines of wall, was inserted; so that the parties had come to an agreement as to price for building the wharf, whether it should be the original or the enlarged wharf. The contract having thus provided for building the wharf, either according to the original line of wall or according to the extended line, it provides, in the paragraph immediately succeeding, for the' disposition of the materials. There can be no doubt that this dredging was to be done under the general provisions of the contract; by those provisions, all the materials obtained by dredging were to be put within the area inclosed by the walls of the wharf, until such area was filled to the prescribed height. Until that time, there was no surplus to be disposed of, and, after that time, such surplus was to be disposed of in certain prescribed places, under the direction of the defendant. If we could imagine any other possible construction of the contract, we do not see how the plaintiffs could recover of the defendant compensation for depositing the materials anywhere, unless under and by virtue of some new agreement between the parties ; for it was their duty to deposit them somewhere, and if the defendant had not the right to require them to be deposited as they were, they certainly might request the plaintiffs to deposit them there without giving them a right to compensation. It does not appear that the plaintiffs had any right to dispose of them elsewhere, or to deposit them except where the defendant consented to their deposit. Indeed, the only claim made by the plaintiffs is that they were authorized to deposit them in another place named in the contract, thereby by implication admitting that the terms of the contract provided for the disposition of the materials derived from this particular dredging. It is* however, only a surplus, after the filling of the area of the wharf, which [204] is thus provided for, and that wharf is the wharf which the contract provides for building, whether as inclosed by the walls as at first contemplated, or by the extended walls which the contract provides for. The only other question therefore is, Did the parties enter into any new contract ? It is not contended that the corporation, as such, made any new agreement. The claim is that the defendant’s superintendent made such agreement. On this point it becomes necessary to examine the evidence. We find that the superintendent wanted the plaintiffs to extend the wharf. The plaintiffs told the superintendent that, if they did that, they should want more pay. Both the superintendent and the plaintiffs understood that, for such extension of the wharf, the necessary dredging and building of the wall were provided for by the terms of the contract, and the plaintiffs, on being asked why they should require more pay, made no claim for any compensation for erecting the wall or doing the necessary dredging, other than was provided for by the contract, but said that they should require more pay on account of the filling, and said that they wanted forty cents for the filling, and the superintendent said that twenty cents was enough, and the corporation would pay that. If this had taken place between the defendant and the plaintiffs, it perhaps would have been an additional contract, for which the defendant would have been responsible, although made under a misapprehension of the rights of the parties, and by reason of a misconstruction of the terms of the contract. But it was not done by the defendant. By its president, and under its corporate seal, it had made a contract, and there is no evidence that the corporation ever made or authorized any agent to make any modification of the contract as it had made it, or to make any other contract upon the subject matter embraced within the sontract as made by itself. Supposing, therefore, the superintendent to have made a contract binding upon himself personally, there is no evidence of any authority in him to bind the corporation, and it is not within the general scope of the authority of an agent of a corporation to alter, vary or enlarge contracts made by the corporation under its corporate seal. Exceptions overruled.