Wood v. Vt. Central Railroad

Bx the Court. The only question in the present case, is in regard to the proper mode of estimating that portion of the plaintiff’s claim which is for “ rip rap.” It is very possible the parties might have entertained different ideas in regard to that point, at the time of entering into the contract. We can only determine the matter, from the terms of the written contract, with such knowledge and experience, as we have, in regard to the subject matter, which is necessarily imperfect. The terms used are exceedingly indefinite. They could scarcely bé more so. But the term “ rock ” and “ earth ” naturally apply to excavation. And from the known practice of estimating such work, by the size of the pit or excavation, there could be little [610] doubt tbe parties so used them. But tbe term “ rip rap,” as we gather from the report and the argument, and our own very limited knowledge-upon the subject, only applies to the stone when laid into a kind of shingling, upon the slope of the dirt embankment, at such points as it is likely to be washed by water. In other words, “rip rap ” is a kind of wall. This being so, it seems to us that the word cubic yard, as applied to this subject matter, would more naturally have the same signification as other measures of solidity, when applied to wall. The term perch is very common, as applied to erections in masonry, whether more or less free from interstices, and it is a solid measure as much as a cubic yard, or any other term of solidity. But we suppose it is a measure to be applied to the structure, without regard to the interstices. If this were not so, it would become necessary to have some general ratio of deduction, on that account, or else to obtain the specific measure of each stone, which could only be done, with perfect accuracy, by immersing each particular stone in some fluid, and then measure the elevation of the fluid by a guage. The truth is, if the interstices are to be deducted, it could only be done in practice, by some average ratio of deduction. If the term embankment had occurred in the contract, instead of “ dirt,” it would certainly entitle the party to have his dirt measured in the embankment, instead of the excavation, although measuring twice as much. For the stipulation would then be for each cubic yard of embankment. But “ dirt ” being indefinite, we are at liberty to resort to the usual custom. But here the term used, seems to imply pay by the cubic yard, for the “ rip rap,” i. e. after the stone is fitted, and laid into wall. And the auditors seem to have found it impossible to find any general usage, or uniform custom, which should control the mode of measurement. It seems to us, therefore, that the county court put the true, or at most, the more obvious construction upon the contract, and the judgment is affirmed.