Davies v. City of East Saginaw

• Decision Date: 05 May 1887
• Citation: 32 N.W. 919,66 Mich. 37
• Court: Michigan Supreme Court
• Parties: DAVIES v. CITY OF EAST SAGINAW.

32 N.W. 919

66 Mich. 37

DAVIES v. CITY OF EAST SAGINAW.

Supreme Court of Michigan

May 5, 1887

Error to Saginaw.

Holden & Harris, for plaintiff.

John A Edgett, for defendant and appellant.

CHAMPLIN J.

The contention in this case arises out of a contract entered into between plaintiff and defendant for grading and paving a portion of a street. The contract, by express reference and terms, makes the specifications, the notice to paving contractors, and proposals made by plaintiff, a part of the contract. These specifications bear upon their face evidence of having been drawn by a person unfamiliar with the terms he employed; or, if not unfamiliar, then he was guilty of a gross misuse of the English language to express the undertakings required of a contractor. The specifications after a general description of the work to be done, which in this case was the paving of Franklin street from the south line of Tuscola street to the south line of Potter street proceed to specify what shall be done by way of "clearing." The contractor is to remove all roots brush-wood, and rubbish of every description from the street, and this work, it is stated, "will be considered as included in the price paid for grading." It also specifies, under this head, that "from such portions of the street on which planks are laid, such plank, and stringers supporting them, shall be removed by the contractor, and by him piled compactly on the side of the street where directed by the street commissioner. Payment will be made for this work by the cubic yard, at the price to be paid for excavation and filling." Had there been anything in the street for this clause to act upon, there might be some difficulty in ascertaining the price to be paid for such work, inasmuch as the contract shows the excavation is to be paid for at one price, and the filling at another. But the evidence shows that there was no plank laid upon this street, and therefore this clause was inoperative. Plaintiff claimed that he had a right, under this clause, to be paid for removing sidewalks by the cubic yard, and the circuit judge held that he could recover therefor as excavation. This was error. The work of removing bridges, platforms, cross-walks, sidewalks, and hitching posts are all included, by a fair construction of the whole contract, under the specification of "grading." And this brings us to consider what is meant by that term in this contract.

The notice to contractors making bids for doing the work contains this clause: "Said paving includes the necessary grading, excavating, and filling," etc.; and it also states the approximate quantities as follows: "158 lineal rods of grading, 1,000 cubic yards of excavation 3,000 cubic yards of filling," etc. The specifications which are referred to in the notice also contain the same "approximate quantities," and require the bidder to state "at what price per lineal yard he will do the grading as specified; at what price per cubic yard he will do the excavating and removing the old plank as specified; at what price per cubic yard he will do the excavation, and removal of earth a distance of 500 feet, and also over, pro rata; at what price per cubic yard he will do the filling as specified," etc. The bid of the plaintiff stated that he would do the...