129 F. 513 | 8th Cir. | 1904
after stating the case as above, delivered the opinion of the court.
In view of the foregoing statement, it will be observed that the case ai bar is prosecuted upon the theory that, when the plaintiff's intestate
The first question to be considered, therefore, is whether any such change was made in the height or width of the tunnel as operated to release the surety on the bond of the contractor, assuming such change of dimensions to have been made without the knowledge of the surety. The contract, which was prepared by the attorneys of the Tunnel Company with especial reference to the work which was to be done by Keefe, was typewritten, and signed by both of the contracting parties. Annexed to this contract, and referred to therein as a part thereof, were certain printed specifications, which were not drawn, at the time the contract was made, with especial reference to the construction of the tunnel in controversy, which is commonly called the “Busk Tunnel,” but had been prepared some time before that tunnel was projected, and were kept on hand by the engineers of the Tunnel Company for general use in connection with whatever construction work they might have occasion to do. The printed specifications in question, which were annexed to the contract, related to railway construction generally, and to various kinds of work which Keefe did not undertake to do and was not expected to do. These printed specifications, under the heading “Tunnel,” contained the following clause:
“The floor will be flat, and excavated to six (6) inches below grade. The roof will be a gothic arch described with a radius of ten and one half (10%) feet from a line ten (10) feet above grade. The side walls will be vertical to a height of ten (10) feet and parallel to and seven (7) feet six inches from the center line. The total height of tunnel from floor to center of roof will be twenty (20) feet six (G) inches.”
Farther on in the specifications, under the same heading, is found the following clause:
“Bills or claims for extra work must be rendered within thirty (30) days after it has been done, and in all cases not later than the end of the next succeeding month. The right is reserved to vary the standard dimensions of the tunnel should the engineer deem it advisable; but the end area shall not thereby be increased. The price per lineal foot of tunnel will include the haul of materials and deposits in embankments at each end of tunnel as directed by the engineer.”
The contract proper, and by this is meant the typewritten part, which was prepared with special reference to the work which the contractor was to do, contained the following provisions:
“(6) It is understood and agreed that the railway company shall have the right to make such changes in the amount, dimensions or character of the*516 work to be done, as In the opinion of the chief engineer the interests of said work or of the company may require; * * *. Any increase in the amount of work to be done, that may be caused by such changes, shall be paid for at the same rate as similar work is herein contracted to be paid for; and if such work is not similar to that herein contracted for, it shall be paid for as extra work at prices to be agreed upon between the chief engineer and contractor prior to the commencement of said extra work, but if the contractor and chief engineer are unable to agree upon a price for said work, then the railway company may enter into contract with any other party or parties for its execution, the same as if this contract had never existed.
“(7) In consideration of the faithful performance of the covenants and agreements made by the contractor, the railway company hereby covenants and agrees to pay or cause to be paid to the contractor, his executor or administrator, the rates and prices hereinafter named, to-wit: * * * Excavation: Earth, twenty-five cents — Per'Cubic Yard. Excavation: Loose Rock, Forty-five cents (45c) — Per cubic Yard. Excavation Solid Rock, One Dollar and thirty cents (§1.30) per cubic yard. Tunnel Excavation, Sixty-two dollars and fifty cents (§62.50) per lineal foot. For tunneling enlargement to receive timber,1 — Two Dollars & fifty cents (§2.50) per cu. yard.”
The evidence shows that after about i,ooo feet of the tunnel had been constructed, counting the construction at both ends, the contractor was permitted by the engineer in charge of the work to make the height of the tunnel 21 feet, instead of 20 feet 6 inches, as called for by the specifications, and he was paid for the extra amount of excavation thus occasioned at the rate of $2.50 per cubic yard for all extra material that was removed. This change in height was allowed, as it seems, mainly for the accommodation of the contractor. He found it quite difficult, in blasting, to make the floor of the tunnel smooth and exactly 20 feet and 6 inches below the center of the roof of the tunnel at all places. In the process of blasting, “hummocks,” as they are termed, would be left in the floor, projecting up into the ballast, which was required to be six inches in depth below grade. These hummocks projecting up into the ballast had the effect of lessening the elasticity of the track, and they could only be removed by the contractor with small blasts of powder, which work occasioned some difficulty and expense. To overcome the difficulty the contractor was permitted to excavate 12 inches below grade instead of 6, so as to avoid the hummocks and the cost of removing them, and he appears to have availed himself of this privilege with alacrity so as to avoid expense. The evidence further discloses, without any substantial controversy, that while 'the side walls of the tunnel were required, to be 7 feet and 6 inches distant from the center line of the track, making the tunnel 15 feet wide between the inside faces of the timber which supported the side walls and the arch, yet it was in fact made about two and three-eighths inches (2^) wider for the greater part of its length, and for the following reasons: The work had been in progress for some time when it was discovered that, if the wall plates were set exactly 15 feet apart in the first instance, the pressure of the mountain, and the blasting which was being done within the tunnel, had a tendency to crowd them inward a short distance, leaving the tunnel a little less than 15 feet wide in the clear; and, as it was necessary that the tunnel should be that wide to insure the safe passage of trains, and as the contract called for that width, the contractor was compelled at times to go back over his work, and, by removing rock and débris back of the timbers, press them back into place.
It is insisted, in behalf of the plaintiff in error, that the words “end area” as used in the specifications, means the superficies of an end of the bore of the tunnel, and that it can mean nothing else; that the alterations aforesaid in the height and width of the tunnel increased its “end area” and the solid contents of the bore of the tunnel, contrary to the letter of the specifications, and for that reason the surety was released, the changes having been made without his knowledge, although such changes appear upon this record to have been to the advantage of the contractor rather than to his disadvantage. On the other hand, the Tunnel Company contends that by its agreement with the contractor it expressly reserved the power “to make such changes in the amount, dimensions or character of the work” as were in fact made; that this clause of the contract does not in fact conflict with the inhibition contained in the specifications against increasing the “end area,” and that, if there is an irreconcilable conflict between the contract and the specifications, the latter must give way to the former, because the contract was prepared with especial reference to the work in question, while the specifications were not so prepared; and that the contract, rather than the specifications, must accordingly be taken as expressing the true intent of the parties. It is further claimed by the Tunnel Company that as the work of excavating the tunnel was to be paid for at the rate of $62.50 per lineal foot, and as a cross-section, 1 foot in thickness, of the tunnel as projected, contained 9.91 cubic yards of material, as shown by the blue prints which were prepared by the company’s engineer, and in pursuance of which bids for doing the work were invited and the contract with Keefe was entered into, the provision in the specifications against increasing the “end area” simply means that the contractor should not be compelled to move more than 9.91 cubic yards of material in excavating 1 lineal foot of the tunnel, and that if, by reason of necessary changes in the bore, he was required at any time to move more than that amount of material, he should be paid therefor as for extra work at the contract rate. In other words, it is said that this clause of the specifications was not intended to deprive the Tunnel Company of the power reserved to itself in the contract to make such changes in the bore of the tunnel as it found necessary to make, but rather to protect the contractor and insure him adequate compensation for his work if such changes necessitated the excavation of more than 9.91 cubic yards of material in advancing the tunnel 1 foot.
With reference to these contentions, it is to be observed that the changes in the height and width of the tunnel did not in fact increase
If the foregoing is not the true interpretation of the clause found in the specifications against increasing the “end area,” and if the language employed means necessarily that the bore of the tunnel should not be enlarged to any extent, then we should be of opinion that the clause in question is in conflict with the provision of the contract heretofore quoted, and is controlled thereby. It is one of the fundamental rules for the construction of agreements that, when a contract is prepared on a printed form, words in. writing prevail over words in print. This is upon the theory that words in writing express the actual and
This brings us to a consideration of the question whether the surety was released from his obligation on the bond because reserved percentages to the amount of $61,000 were paid to the contractor in advance of the completion of the tunnel. The contract provided, in substance, that approximate estimates of the value of the work done should be made on or about the last day of each month, and that the amount of said estimates, less 10 per cent., should be paid to the contractor, and that the reserve percentage should be withheld by the Tunnel Company until the final completion and acceptance of the work; also that the contractor should be subject to the laws of the state of Colorado regarding liens for labor or materials furnished for the work, and should protect or indemnify the Tunnel Company against all claims upon it or liens upon the premises for labor or materials furnished, and that the Tunnel Company might, whenever it deemed proper and expedient to do so, pay to the laborer or other persons employed by the contractor, or who had furnished materials for said work, out of any moneys due for any monthly or other estimates, any sums due for labor, services, or materials under the contract, and might charge the payments to the contractor as so much paid on his contract. As early as February 21, 1891, Keefe, the contractor, appears to have become involved in debt for labor and materials furnished in constructing the tunnel, which he was
The case has been argued in this court by learned counsel for the plaintiff in error upon the theory, apparently, that it was the duty of the attorney who represented the Tunnel Company to specially invite the attention of the opposite party to the fact that the greater part of the reserved percentages had been paid, and that such was his duty, because the claim was against a surety, and for that reason involved the exercise of the highest degree of good faith. Conceding, for the purposes of the present case, that a higher degree of good faith was requisite than in ordinary cases, because the rights of a surety were involved, we cannot accede to the proposition that an obligation rested on the attorney for the Tunnel Company to invite special attention to the fact that the reserved percentages had been in great part paid. It was sufficient, we think, to advise the opposite party what was the total sum earned by Keefe, and how much of the sum earned had in fact been paid. He was dealing with a competent attorney who had been employed by the surety to attend to his interests, who was doubtless well acquainted with the provisions of the contract between Keefe and the Tunnel Company, and fully qualified to decide whether the right to recover against his client had been impaired by the payments that had been made, the extent of which he well knew. Although he represented a surety, he was not wholly absolved from the duty of making inquiries or deductions from facts within his knowledge, nor was he privileged to rely blindly on such information as the opposite party saw fit to communicate, without seeking other information that might be of advantage to his client. It is most probable, we think, that the attorney for the Tunnel Company regarded the payments that had been made to the contractor as payments which it had the right to make under the provisions of the contract reserving to it the right to discharge claims for labor, services, and materials which might become a lien on the tunnel, and it may be that he was right in that view of the case, although no opinion need be expressed on that question. For, whether that view is right or wrong, he communicated enough facts to the opposing party to bring the question sharply to his attention, and he was not required to go further. The law favors the compromise of doubtful claims, and the avoidance of litigation is a sufficient consideration to support such agreements, even though it eventually appears that, if the demand had been litigated, no recovery could have been had. It will not suffer them to be set aside on slight grounds. Cleaveland v. Richardson, 132 U. S. 318, 10 Sup. Ct. 100, 33 L. Ed. 384; Hager v. Thompson et al., 1 Black, 80, 94, 17 L. Ed. 41; Graham v. Meyer, 99 N. Y. 611, 1 N. E. 143; Swem v. Green, 9 Colo. 358, 364, 12 Pac. 202 ;
The judgment below is accordingly affirmed.