McCauley v. City of Des Moines

• Decision Date: 02 June 1891
• Citation: McCauley v. City of Des Moines, 83 Iowa 212, 48 N.W. 1028 (Iowa 1891)
• Parties: MCCAULEY v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

83 Iowa 212

48 N.W. 1028

MCCAULEY

v.CITY OF DES MOINES.

Supreme Court of Iowa.

June 2, 1891.

Appeal from district court, Polk county; MARCUS KAVANAGH, Jr., Judge.

This is an action to recover for alleged extra work in building a brick sewer under a written contract with the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.Detrick & McMartin and Hugh Brennan, for appellant.

Kauffman & Guernsey and Macey, Sweeney & Jones, for appellee.

ROTHROCK, J.

The contract which the plaintiff undertook to perform was to construct a brick sewer in the city of Des Moines, according to certain written plans and specifications. The plaintiff was to make the excavation, furnish the materials, and complete the work for $4.44 per lineal foot. He was to perform all the labor under the direction of the city engineer, and to furnish all the materials necessary to construct and complete the work he undertook to perform. In making the excavation the plaintiff claims that it was necessary to remove a large quantity of rock in order to put the sewer in place, and that, when the contract was made, the parties thereto supposed that earth excavation would alone be required. The evidence shows that the excavation of the rock imposed upon plaintiff an expenditure of several hundred dollars in addition to what would have been incurred if there had been an excavation wholly composed of earth. This is the foundation of plaintiff's demand against the city. The claim of the plaintiff must be determined by the contract, and we may here say at the outset that there is no ambiguity in the instrument that is susceptible of explanation by oral evidence. By the very terms of the contract the plaintiff bound himself “to furnish at his own proper expense all necessary material and labor, and excavate and build in a good, firm, and substantial manner,” the sewer in question. It was provided in the specifications that “the contractor shall make all necessary excavations for the sewer proper as well as for the appurtenances. The excavations are to be made in such directions and of such widths and depths as shall be necessary.” If these provisions of the agreement of the parties are to be construed by the natural meaning of the language employed, there is no ground upon which the plaintiff can be permitted to recover. He was bound to make the excavation without regard to the character of the substance to be removed, whether clay, sand, quicksand, hard-pan, or stone. The fact that the excavation required labor which did not enter into the contemplation of the parties when the contract was made...