Henderson Bridge Co v. McGrath

• Decision Date: 17 March 1890
• Citation: 33 L.Ed. 934,10 S.Ct. 730,134 U.S. 260
• Parties: HENDERSON BRIDGE CO. v. MCGRATH et al
• Court: U.S. Supreme Court

10 S.Ct. 730

134 U.S. 260

33 L.Ed. 934

HENDERSON BRIDGE CO. v. MCGRATH et al.

March 17, 1890.

This was an action at law brought by the defendants in error against the plaintiff in error in the circuit court of Vanderburgh county, Ind., and removed into the circuit court of the United States for the district of Indiana.

The Henderson Bridge Company is a corporation of the state of Kentucky, organized for the purpose of building a bridge over the Ohio river from the city of Henderson, Ky., to the Indiana bank of the river, and a railroad thence to the city of Evansville, Ind., a distance of about nine miles. On the 8th of July, 1884, a contract was made between the company and the defendants in error for the grading, masonry, and trestling of the railroad for a distance of something over six miles, measuring from Evansville to the bridge, designated as sections 1 to 6, inclusive, and a part of section 7, each section being one mile long. No formal written contract was executed between the parties, but the agreement arrived at consisted of (1) specifications and profile of the work to be done on the part of the company; (2) proposals on the part of the contractor; and (3) acceptance of the proposals by the company. The specifications prepared by the chief engineer of the defendant classified the work as 'clearing and grubbing,' 'excaa tions,' 'embankments,' 'masonry,' and 'pile trestle.' Defendants in error completed the work about the 1st of March, 1885, and the company accepted it. On the final settlements a controversy arose as to the amount of the balance due the defendants in error, after crediting the partial payments made as the work progressed; and this suit was brought to recover the amount of $23,667, claimed by them to be due, which the company had refused to pay. The bills of exception taken below, however, and the errors assigned, narrow the controversy in this court to two items,—one being in respect to a drainage ditch, which was ordered to be made; the other, in regard to the value of certain extra pile-work. Our statement of the case will be confined to an examination of those points.

(1) The work contracted for lay, all except the two sections nearest to Evansville, through the bottoms of the Ohio River, which were subject to overflow. On that portion in the bottoms the profiles showed several stretches of trestling, which aggregated 1,486 feet. The specifications, however, provided that 'the quantities marked on profile are approximate, and not binding. The relative amounts of trestle and earth-work may be changed at option of the engineer, without prejudice.' While the work was in progress the company determined to modify the plan so as to omit the trestle, and make a continuous embankment with underlying drain-pipes. This modification necessitated a different system of surface drainage, and it was determined that the borrow-pits (that is to say, the excavations along the line of the railroad from which the earth was taken to form the embankment) should form a drainage ditch on the eastern side for about two-thirds of the way. Mr. Hurlburt, who was the company's third engineer in rank, and had immediate supervision of the work in the field, was directed to have these modifications carried out. In consequence of this change of the plan, Mr. Vaughan, the company's chief engineer, on the 16th of August, 1884, telegraphed O. F. Nichols, the resident engineer at Henderson, directing him to notify the defendants in error that 'all trestle on portion of line embraced in their contract will be dispensed with.' And on the 26th of August following Nichols wrote them as follows: 'As directed by the chief engineer, Mr. F. W. Vaughan, I hereby notify you that the trestle shown north of station three hundred and thirty-three (333) on profile of the Henderson Bridge Railroad will be omitted. The corresponding space will be filled by solid embankment. Arrangements have been completed for additional borrow-pits necessary to complete these embankments.' No objection was made to that change by the defendants in error. In regard to the ditch, however, it was different. Defendants in error maintain that no such ditch was called for either by the specifications or by the profile, and that, therefore, they were under no contract to make it. They claim further, and there is testimony in the record to the point, that, on the day after the receipt of Mr. Nichols' letter, hurlburt, the local engineer in charge, came to see them, and notified them that they would be required to make said ditch on the eastern side of the embankment from section 3 to section 7, inclusive, for the purposes of draining the borrow- pits, such ditch to be two feet wide on bottom in section 3, three feet at bottom in section 4, four feet wide on bottom in section 7, and to run through the borrow-pits, and have a slope of one and a half feet, horizontal measurement, to one foot perpendicular. Defendants claim, further, that they objected, on the ground that they could not make the ditch without compensation, and that thereupon Hurlburt replied that they would be paid for it at the same price they had bid for excavation, and that it would be estimated from the top of the ground down. The company, on the other hand, denies both the fact of the making of such alleged supplementary contract, and the authority of the engineer, Hurlburt, to make it. It maintains that the evidence show only an expression of opinion made by Hurlburt. The annexed rude diagram of a cross-section of the work will illustrate the situation.

Defendants in error do not deny the fact of the coincidence, as stated, between the ditch and the borrow-pits, but they justify by saying that the basis of measurement adopted in their contract, while it is to a certain extent arbitrary, yet is not a cheating or improper basis, for the reason that it is a commutation, and was necessitated by the introduction of the continuous parallel ditch. The digging of such a ditch introduced, they claim, an entirely new element into the work; it peremptorilly demanded the careful maintenance of the ditch level throughout its whole extent, and required long hauls of dirt; and whereas, before the ditch was ordered, the excavation was made entirely with reference to the con- venience of depositing the dirt in the embankment, afterwards it had to be made with reference to the ditch.

(2) The defendants in error were required to make certain trestle approaches on one side of the road for some of the road crossings and farm crossings, into which were put 2,800 lineal feet of piling. The profile did not indicate that these approaches were to be made of piling; and defendants in error claim that they were not, therefore, included in the bid, but were made under a new agreement that they should be paid for 'as was right.' The contract price for trestles was 30 cents per lineal foot, but the evidence of defendants in error tended to show that the construction of these trestles was worth from 60 cents to $1.50 per lineal foot. The engineer's estimate for February, 1885, contained this item: 'Secs. 3, 4, 5, 6, 7. Piles driven, 2,108 lineal feet, 30 cents per lineal foot, $630.90.' This was part of the piling in controversy, and on this estimate the defendants in error settled with the company for February, and receipted it. The company now claims that said settlement and receipt, and the original agreement as to value in the bid accepted, conclusively fixes the price at 30 cents per lineal foot for the whole 2,800 feet; while the defendants in error, on the other hand, claim that the receipt in February was merely for a payment for 2,108 lineal feet, and that they can, as to the other 700 feet, still prove value on a quantum meruit.

Under these forms of the controversy, not necessary to be further adverted to here, the case was tried below. On the trial the court instructed the jury as follows: 'The taking out of the trestles and the requirement of earth-work in their place created no basis for a claim for extra compensation; so that, for the purpose of the question we are now coming to, the case is the same as though the specifications and profile in the first instance had shown continuous embankment. The bridge company, having come to the conclusion to make this embankment, deemed it proper to make a change in the requirements in respect to ditches, but there is no reservation in the contract in regard to that. Of course, the general terms of the contract in respect to the right of the engineer to oversee the work may embrace the power to direct reason able changes in regard to ditches, but there is nothing authorizing the bridge company to substitute a continuous ditch for the ditches defined upon the original profile; so, when they determined to require this continuous ditch to be made, it necessarily put the parties into a position for negotiation on the subject, and Mr. Hurlburt, the engineer in charge, being authorized to have this ditch constructed, had incidental authority to agree upon the price or mode of measurement.' The defendant at the time excepted to so much of that instruction as is contained in the following words, viz: 'But there is nothing authorizing the bridge company to substitute a continuous ditch for the ditches defined upon the original profile; so, when they determined to require this continuous ditch to be made, it necessarily put the parties into a position for negotiation on the subjec, and Mr. Hurlburt, the engineer in charge, being authorized to have this ditch constructed, had incidental authority to agree upon the price or mode of measurement.'

The court also gave the jury the following instructions, viz: 'But, when it was proposed to make a continuous ditch on the east side of the track at the same time the embankment was being made, that introduced a new element into the problem. If the parties were to make an embankment and ditch also, it became desirable to...