Grand Rapids and Bay City Railroad Company v. Van Deusen

• Decision Date: 08 July 1874
• Citation: 29 Mich. 431
• Court: Michigan Supreme Court
• Parties: The Grand Rapids and Bay City Railroad Company v. Stewart A. Van Deusen

29 Mich. 431

The Grand Rapids and Bay City Railroad Company v. Stewart A. Van Deusen

Supreme Court of Michigan

July 8, 1874

Heard May 12, 1874

Error to Bay Circuit.

Assumpsit. Defendant brings error. Reversed.

Judgment reversed, with costs, and a new trial awarded.

Marston Hatch & Cooley, for plaintiff in error.

Holmes & Stoddard, for defendant in error.

OPINION

Christiancy J.

This was an action of assumpsit, brought by Van Deusen against the railroad company upon a contract for grading and preparing for ties about fourteen miles of road-bed (including clearing, grubbing, building culverts, bridges, cattle guards, and the necessary excavations, embankment and filling), and upon the common counts.

The contract is dated December 7th, 1871; was executed by three (of the five) members of the executive committee of the company, and on its behalf (no question being raised as to their authority), and by the plaintiff Van Deusen, and John F. Willey, contractors, Willey having, after the work was commenced, assigned all his rights under the contract to Van Deusen.

As a copy of the contract is given below, ^[+] I shall notice here only such parts of it as bear upon the questions raised and relied upon.

The price for the grading was twenty-eight cents per cubic yard. But as the number of yards would be different, according to the particular mode of measurement, and would depend upon whether the earth should be measured after it should be thrown into the embankment (where this was done), or whether the hole or excavation from which it was taken should be measured, the specifications, which are made a part of the contract, for the purpose of removing all doubt upon this point expressly declare: "The roadbed to be formed by the earth thrown from the ditches each side, in all cases when the same can be done, unless otherwise ordered by the engineer or superintendent in charge. Where there are cuttings on the line of the road, the contents of the same to be removed into the adjacent hollows to form embankment, unless otherwise directed, all earth removed to a distance not to exceed six hundred feet, to be considered as a part of the contract, and nothing extra to be allowed. When the distance exceeds six hundred feet, one per cent. per cubic yard per one hundred feet for the distance the same is carried will be allowed for all earth that is carried to a greater distance than the standard six hundred feet.

"When the excavation is used in the embankment, the embankment only will be measured. When the excavation is thrown into spoil banks," [in other words, thrown away, or not used in embankment] "the excavation will be measured."

The court in his charge construed this contract as prescribing precisely the same rule of measurement of earth taken from the ditches along the sides of the road, when that earth was thrown into embankment, and that taken from cuttings in the line of the road, thrown out as spoil, and not used in embankment; and laid it down as the law of the contract that excavation was to be alike measured in both, instead of the embankment into which the earth was placed in the process of grading the road. To this extent the meaning of the charge is clear enough; but it seems to me to go still further, and in effect to hold that, as a rule applicable to the measurement of all earth thrown into or used in embankment, whether from ditches or from cuttings in the line of the road, it shall be as excavation, by measuring the space whence it came, and not the earth in the bank; and that the clause in reference to measurement in the embankment was only inserted as a kind of necessity, to avoid measuring the same earth twice, in cases where a part of it had been thrown out as spoil, and a part used in the embankment, and where the embankment was in part made from the ditches and part from the cuttings in the line of the road; and that after all, in some way, or for some reason, which is not to our minds very clear, the rule of measurement adopted as a principle for all earth thrown into embankments was that the amount was to be ascertained by measuring the space from which the earth was taken, in short, the excavation. If this is not his meaning, it is difficult to discover from what he draws the conclusion which he proceeds to draw, that the plaintiff was to be allowed for all shrinkage of the earth arising from its being thrown into embankments and measuring less there than it did where it was taken from. But as this part of the charge is not so clear as to enable us to feel entirely certain of its meaning, we give it below ^[+] as we find it in the record.

A careful examination of this contract and specifications has not enabled us to find any thing to warrant the construction adopted by the circuit court. The contract plainly contemplates that, as a general rule, the road-bed will be an embankment which is to be made by earth thrown up from the ditches on either side, but that there would be places along the line of the road which were already too high, and to be brought to grade would be required to be cut down; and these are what are plainly referred to as "cuttings on the line of the road," the contents of which were to be "removed into the adjacent hollows to form embankment, unless otherwise directed." The ditches along the sides of the road, from which the road-bed is required to be formed, unless otherwise directed (when not made from the cuttings on the line), are not designated and cannot be treated as "cuttings" within the meaning of that term in the specifications.

Bearing these obvious considerations in mind, can there be any possible doubt of the meaning, or any room for construction of the provision: "When the excavation is used in the embankment, the embankment only will be measured; when the excavation is thrown into spoil banks, the excavation will be measured?" The word "excavation," as first used in the provision just quoted (that is, "when the excavation is thrown into embankment"), applies as well to the earth taken from the ditches as from the cuttings. There is nothing in the specifications to show that its meaning was intended to be limited to that part dug from the cuttings; and earth taken from the ditches would in a general sense be "excavated;" but when the term excavation is used the second time in the provision quoted, the very extent of the provision, and of the subject to which it relates, shows that it is limited to the excavation made in the "cuttings" referred to, or at most to these and to ditches in places where to make them continuous required more earth to be thrown out than was required in the adjacent road-bed or embankment; since in no other cases was it contemplated that earth thrown from ditches would be thrown into "spoil banks."

We think it clear that the rule intended to be established by these specifications was, that all earth thrown into embankments (that is, for the purpose of bringing it up to grade), whether taken from ditches along the side, or from "cuttings on the line," should be measured "in the embankment," and not as excavation according to the space it occupied before removed; and that all the earth thrown into spoil banks was to be measured as excavation, because it could not be measured in embankment, and would naturally be thrown into such irregular masses as to be difficult of measurement, otherwise than as an excavation, by measuring the space it occupied before removal. It does not appear that there was in this case any instance in which any earth was thrown into spoil banks; nor, of course, that a part of the excavation from the same cuttings was thrown into embankment and a part into spoil banks; nor that there was any place where the same space in length of embankment was made in part by earth thrown from the side ditches and in part by excavation from cuttings; and, therefore, none of the difficulties are shown to exist, upon which the court seems to have relied, as justifying the construction, that measurement by excavation was the rule of the contract. But the construction adopted by the court does not get rid of the difficulty of measurement, when a part of the earth thrown out, whether from ditches or cuttings, is into embankment, and a part into spoil banks, should any such instance be shown to have occurred, any more than that we have indicated as the true one; there would still be the same difficulty of determining the respective amounts of each, which should be measured as embankment or as excavation. But this difficulty, if it were by the facts shown to have arisen, is by no means insuperable, as a different rule of measurement was to be adopted as to the respective portions of the same embankment, both parties would be interested in ascertaining the respective amounts of each, and this might be ascertained by several measurements as the work progressed; and if these were not made, then by the best estimate witnesses might be able to make of the respective amounts of each.

The interpretation we have adopted as the only fair meaning to be drawn from the portion of the specifications already quoted is consistent with and sustained by all other portions of the specifications relating in any manner to the question. Thus, immediately following the portion already cited they proceed: "The embankment is to be twelve feet wide on top from shoulder to shoulder, and with slope of one to one in clay, and one and a half to one in sand, with a berme of from two to three feet left each side of said embankment.

"The excavation" [here evidently meaning in the cuttings] "is to be twenty feet at the bottom, with such slopes as the nature of the ground will admit. Any change that may be made in the width or height of any...