Steele v. City of Ely

LOVELY, J. This action is to recover for extra work performed by the plaintiff in laying a rock foundation for an intake pipe to facilitate the establishment of its water-works by the city of Ely, defendant. The cause was tried to a jury, there was a verdict for plaintiff, followed by the blended motion for judgment or new trial in the alternative, which was denied, and defendant appeals. Under the issues presented at the trial it was entirely a question of fact whether the alleged extra work was properly authorized by the consulting engineer, one McGilvray. Under the terms of the contract between the city of Ely and the plaintiff contractor, the rock bottom actually laid was not provided for therein, but as the work progressed it was found that beds of soft mud existed beneath the line where the intake pipe was to be laid, and that a covering of some thickness, composed of vegetable growth, clay, and fine sand, overlaid the beds of mud, so as to render it impracticable, if not impossible, to have laid the pipe in accordance with the plans. The assistant engineer, Conroy, in charge of the work, directed the rock bottom to be placed as a foundation by the contractor, and the controversy in this case arises over the question whether this work was done by the direction of the engineer, McGilvray. The work was performed in good faith by the contractor, but the engineer declined to furnish estimates thereof or facilitate the collection of the claim; hence this action. We are satisfied, from a thorough and careful examination of the entire testimony, that the work was done under such conditions as justified the plaintiff in relying upon directions given and approved by the engineer, and that the verdict was no more than a recognition of a righteous claim. The order appealed from is affirmed.