Shephard v. St. Charles W. Plank Rd. Co.

• Decision Date: 31 March 1859
• Citation: 28 Mo. 373
• Parties: SHEPHARD et al., Plaintiffs in Error, v. ST. CHARLES WESTERN PLANK ROAD COMPANY, Defendants in Error.
• Court: Missouri Supreme Court

28 Mo. 373

SHEPHARD et al., Plaintiffs in Error,

v.ST. CHARLES WESTERN PLANK ROAD COMPANY, Defendants in Error.

Supreme Court of Missouri.

March Term, 1859.

1. Certain contractors agreed with a plank road company “to do the necessary masonry, grading, gutters and all things else pertaining to the complete graduation and masonry” of a division of the plank road. The company agreed to pay “at the rate of sixteen cents per cubic yard for all excavation of earth done on said road under this contract. Unexpectedly to both contracting parties, the contractors, in fulfilling their contract, met with a large amount of indurated earth and cemented gravel, which they excavated. Held--it appearing that among engineers and contractors indurated earth and cemented gravel were known and recognized as entirely distinct from common earth, and that it was customary for contractors to receive extra compensation for excavating such materials--that the price to be paid the contractors for the excavation of such materials was not provided in the contract, and that consequently they might recover what the same was reasonably worth.

Error to St. Louis Circuit Court.

William Shephard and Thomas Spence contracted with the St. Charles Western Plank Road Company “to do the necessary masonry, grading, gutters and all things else pertaining to the complete graduation and masonry of the first division of the St. Charles Western Plank Road.” It was further stipulated that the company would pay the contractors “at the rate of sixteen cents per cubic yard for all excavation of earth done on said road under this contract; two dollars and sixty cents per perch of twenty-five cubic feet for masonry laid in approved lime mortar, and two dollars and thirty cents per perch as aforesaid for dry masonry.” It was further agreed that all estimates made and certified by the engineer should be “conclusive and final, without the right of either party to appeal therefrom under any pretext whatever.” In the “specification” accompanying the contract it was stipulated that “the trees shall be cut down and cleared off in all cases to a width not less than thirty feet on each side of the centre line of the road.”

This suit was brought to recover extra compensation for the excavation of indurated earth and cemented gravel, and for grubbing and clearing the roadway of trees, and for a small amount due on contract according to the estimates made. The court, at the request of defendant, instructed the jury as follows: “1. The contract with the specifications given in evidence in this case requires the plaintiffs to do all the work necessary for the grading of defendant's road, and plaintiffs are not entitled to recover any thing for excavating the indurated or cemented earth or gravel, or for clearing or grubbing the track of said road, beyond the price stipulated in the contract.” The jury found for plaintiffs in the sum of $158.72, an amount due to plaintiffs under contract as interpreted by the court. The character of the testimony introduced sufficiently appears below in the opinion of the supreme court.

N. D. & G. P. Strong, for plaintiffs in error.

I. The plaintiffs were entitled to extra compensation for excavating the indurated earth and cemented gravel. The price of this work was not fixed by the contract. The court should have granted a new trial on the ground of newly discovered evidence. (Bubois v. Delaware & Hudson Canal Co. 12 Wend. 334; 15 Wend. 87; 6 Greenl. 479; 2 Wash. C. C. 411.)

Coalter and Lewis, for defendant in error.

I. The work for which extra compensation is claimed by plaintiffs was embraced within the terms of the contract, and plaintiffs were entitled to nothing beyond the compensation provided therein. (See Boyle v. Agawam Canal Co. 22 Pick. 381.) The engineer's estimates were conclusive. (11 Gratt. 676; 7 M. & W. 313; Russell on Arbitr. 104; 9 Gill. 288; 16 Penn. 469; 27 Engl. L. & Eq. R. 35.) The plaintiffs recovered all they were entitled to. The instructions asked were properly refused. (21 Mo. 404.) The application for a new trial was properly refused. (1 Gra. & Wat. on New Trial, 473; 3 Id. 1046, 1067; 22 Mo. 563; Chitt. on Contr. 541.)

SCOTT, Judge, delivered the opinion of the court.

There is no doubt that by the terms of the contract the plaintiffs were bound to make all the excavations necessary to grade the road, of whatever materials they were composed; and, had they agreed to make the excavations at a certain price, they would have been bound to do it, notwithstanding the material of the excavation was different from what it was supposed and the removal of it was attended with a greatly increased cost. This is the principle of the case of Boyle v. Agawam Canal Co. 22 Pick. 381, relied on by the defendant, and in which we entirely concur. This is a familiar principle and applicable to all contracts of the kind.

But the question in this case is, not what...