Geary v. City of New Haven

• Decision Date: 24 July 1903
• Citation: 55 A. 584,76 Conn. 84
• Court: Connecticut Supreme Court
• Parties: GEARY v. CITY OF NEW HAVEN.

55 A. 584

76 Conn. 84

GEARY

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

July 24, 1903.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action by James J. Geary against the city of New Haven to recover for alleged extra work in the construction of the substructure of a bridge. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Hobart L. Hotchkiss and Harry W. Asher, for appellant.

William H. Ely and Richard J. Goodman, for appellee.

HALL, J. In May, 1896, the plaintiff entered into a written agreement with the city and town of New Haven "to furnish all the necessary materials and labor and to construct and erect in a substantial and workmanlike manner, the substructure for a bridge on Grand avenue, over the Quinnipiac river, * * * of the dimensions, in the manner and under the conditions" specified in said agreement, made a part of the complaint. By the contract the work was to be completed on the 12th of October, 1896. It was in fact completed on about the 15th of September, 1897. The plaintiff claims to be entitled to recover for extra labor and materials, for damages sustained from delays caused by the defendant, and for the use by the defendant of a temporary bridge constructed by the plaintiff. The total amount of the plaintiff's bill of particulars, comprising 12 items, is $45,423.21. The defendant having filed an answer, in substance denying that the plaintiff had performed any extra work, and that the delays were the fault of the plaintiff, and alleging that the delays were caused by the plaintiff's incompetency and inferior work, the case was referred to a committee to hear the evidence and report the facts to the court. The committee reported specifically the facts estab lished by the evidence and relevant to the issues, and practically found in favor of the defendant upon all the controverted and material questions of fact relating to each item of the bill of particulars, excepting as below stated regarding the first item, and also fully set forth in his report the objections and rulings upon all questions of evidence. The plaintiff filed a remonstrance to the committee's report, which was overruled by the court, and the plaintiff thereupon claimed to be entitled to recover upon the report as accepted, under the first item of his bill of particulars, the sum of $1,029. The overruling of this claim raises the principal question presented by this appeal.

The following is the first item of the bill of particulars:

"To extra work and materials furnished in the construction of the west rest pier as ordered by the city engineer—said work consisting of additional masonry required in going down from a depth of twenty-six feet below mean high water, as the original plan called for, to a depth of thirty-three feet nine inches, which is the present foundation—$13,352.00.

"This includes the dredging and towing of materials, and all incidentals.

242 cubic yards of masonry (extra)

$5,08200

2.600 cublic yards of dredging

5,20000

Vessel, pumping and divers, and recutting of stone, etc

3,07000

$13,352 00"

The bridge in question is a drawbridge. The pier upon which the draw span rests is referred to as the "center pier." and the two upon which the ends of the draw rest, the westerly one of which is called in the above item the "west rest pier," are called the "east and west piers."

It is the plaintiff's contention that, by the written contract and plans, he agreed to build said west pier to a depth below high-water mark of 26 feet only, at the contract price of $14 for each cubic yard of masonry; that he was required to construct it to a depth of 33 feet and 9 Inches below high-water mark; that the building of the pier below the 26-feet line was much more expensive per cubic yard than the building of it above that line; and that, under the report of the committee, he is entitled to recover the extra expense above $14 per cubic yard for the building of the pier below said 26-feet line. The committee reports that it was found, necessary to dredge to the depth of 33 feet and 9 inches for the foundation of said west pier, that the construction of the masonry below the 26-feet line was worth 50 per cent. more than that above the line, and that the 147 cubic yards of masonry below that line was worth $21 per cubic yard for construction; amounting, after deducting the sum of $14 per cubic yard already paid the plaintiff for the construction below the 26-feet line, to the sum of $1,029. The committee further finds that "there was no extra work done or materials furnished in the construction of the west pier, as ordered by the city engineer as set forth in item No. 1 [of bill of particulars], unless, as a conclusion of law from the facts hereinbefore stated, the work on the west pier below the twenty-six feet mentioned in the plans must be held as extra work, and that if, as a conclusion of law, the court holds that the plaintiff is entitled to extra compensation, * * * the amount due is $1,026."

Whether the plaintiff is entitled to recover for extra work under this item becomes, therefore, a question of construction of the written contract. As sustaining his claim that by the provisions of the contract the work below the 26-feet line is extra, the plaintiff calls our attention, among other thing's, to this language of the contract, under the head of "Masonry": "The dimensions of piers and abutments shall be as shown on the plans on file in the office of the city engineer;" and under the head of "General Provisions": "All work embraced in this contract shall be built truly to the line and gradient throughout in a first-class manner and according to the plans and directions furnished from time to time by the engineer." The plaintiff claims that it appears by the map, Exhibit C, one of the plans referred to by the above language, that at a depth of 26 feet below high-water...