Dugan v. Kelly

• Decision Date: 08 April 1905
• Citation: 86 S.W. 831
• Parties: DUGAN v. KELLY.
• Court: Arkansas Supreme Court

86 S.W. 831

DUGAN v. KELLY.

Supreme Court of Arkansas.

April 8, 1905.

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Action by John Kelly against Charles Dugan. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by appellee to recover for work performed for appellant under a written contract, the material portions of which are as follows: "Said John Kelly * * * agrees to and with Charles Dugan * * * that he will to the best of his ability perform the following work, viz.: Excavate in the rear of the Southern Club, Hot Springs, Ark., 34 feet deep running back from rear line of present building, 55 feet parallel thereto; also remove 300 yards slope and build stone wall 55 feet long, 3 feet thick, and 16 feet high, for the sum of $2,744.75. And it is further agreed that said party of the first part will remove area brick wall and brick closets and stack in front of building for the sum of $30 additional to the above-mentioned sum. And it is further agreed that if there should be any additional sloping, the same shall be paid for at the rate of $1 extra per yard." The item and amount in controversy is for the removal of 686 cubic yards of stone and earth, as "extra sloping," in addition to the 300 yards stipulated for in the contract; and the question presented is whether, under the contract, appellee was compelled, without extra charge, to remove all the slope, regardless of the amount, or whether he could charge for all in addition to 300 yards. The contention of appellee is that, for the stipulated sum, he was to remove not exceeding the 300 yards named, and could charge for any excess, whilst appellant claims that appellee, by the contract, agreed to remove all the slope, and that he could make no extra charge for an excess over 300 yards unless required by appellant to do it as extra work. "Sloping" is defined by one of the witnesses to be "all the earth necessary to be taken off on back of a perpendicular line to keep it from caving"; and it is shown by proof that, when the contract was made, it was estimated that it would probably be necessary to remove about 300 yards of slope. It is conceded that a considerable amount of the work claimed by appellee as additional sloping was in removing earth which caved into the excavation from the bank before erection of the retaining wall. It appears also that a part of the additional sloping was on account of irregular and abutting points and angles in the bank left by the cave or landslide. Another disputed point in the construction of the contract is whether the slope in the bank should have begun from the top or from the bottom of the retaining wall. Appellee testified that the slope began from the bottom of the wall, and that that was essential, as the only purpose served by the wall was to retain the dirt falling from the mountain side, and that it was not necessary for protection against caving.

The case was submitted to the jury upon the following instructions:

"(1) If plaintiff performed his work under the contract in a careful and expeditious manner, and in doing so, and without fault on his part, it became necessary, in order to complete said work according to contract, to remove more than 300 yards of sloping, then you will find for plaintiff at the rate of $1 per yard for all sloping which it became so necessary for him to remove."

"(c) If you find from the evidence that the word `sloping,' mentioned in the written contract, refers to the removal of slope commencing at the top of the rear...