Lynch v. Henry

• Decision Date: 28 January 1890
• Citation: 75 Wis. 631,44 N.W. 837
• Parties: LYNCH v. HENRY ET AL.
• Court: Wisconsin Supreme Court

75 Wis. 631

44 N.W. 837

LYNCH

v.HENRY ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1890.

Appeal from circuit court, Ashland county.

The amended complaint alleges, in effect, that March 11, 1887, the plaintiff and one Rhodes entered into an agreement in writing with the defendants, whereby they agreed to construct, and in every respect complete, all the work required by the defendants to be done on the line of the Duluth, South Shore & Atlantic Railroad, in such manner as would conform in every respect to the direction of the engineer, and in accordance with the specifications thereto annexed; that such specifications, among other things, were to the effect that for grubbing, when required, the said Lynch and Rhodes were to have $1.25 per square rod, and that, when embankments were to be made not exceeding two feet high, the trees and stumps were to be cut even with the surface of the ground, and removed therefrom, to be occupied by such embankments, bermes, and ditches; that no allowances were to be made for grubbing when subgrade on embankments should be two feet higher than the natural surface of the ground; that no prices for grubbing would be allowed where excavations were to be made for road-ways, burrowing pits, ditches, or other purposes, except in the track-bed between slope-stakes; that the ground to be occupied by the excavations and embankments, together with a space of 50 feet each side of the center line on highland, and 70 feet on lowland, if required by the engineer, should be cleared of all trees, brush, and other perishable matter; that, where the filling should not exceed two feet, the trees, stumps, and saplings were to be grubbed, but along all other portions of the embankment it should be sufficient that they be cut close to the earth; that no separate allowance would be made for grubbing, but its cost would be included in the price for excavation and embankment, actual clearing to be paid for by the agent.The amended complaint further alleges that April 1, 1887, and before doing any work under the contract, Rhodes assigned his interest therein to the plaintiff; that June 20, 1887, the plaintiff insisted that the contract was contradictory, and had not been drawn according to the true agreement between the parties, and absolutely refused to do any more work thereunder, unless the same should be modified; that thereupon, in consideration of his agreeing to do the work required by the contract, upon such modification being made, the defendants agreed to pay the plaintiff the sum of $1.25 per square rod for all grubbing done by him in the track-bed between slope-stakes, over excavations; that said grubbing should be paid for outside and entirely separate from the excavation over which it was to be done; that under said written contract, so modified by parol, the plaintiff was required to and did do 1,500 square rods of grubbing for the defendants between slope-stakes, within the track-bed, between stations Nos. 320 and 545 of said railroad, between March 11, 1887, and July 1, 1887; that September 24, 1887, the plaintiff and defendants...