12 Wend. 334 | N.Y. Sup. Ct. | 1834
By the Court,
The principal matter in dispute in this .case, is the extra allowance made to the plaintiff by the referees for hard-pan excavation. That item alone amounts to $4,500. The whole balance reported in favor of the plaintiff being but $5,336,91.
The referees adopted the estimate of the defendant’s witness, James McEntee, the resident engineer, who superintended the contruction of this part of the canal, as to the quantum of hard-pan excavation. He estimated it at 9000 cubic yards, and considered it worth 25 cents per yard' — that is, 14 cents per yard beyond common excavation, where the earth is carried more than 100 feet, which is called embankment. The price of embankment, as settled by the written contract between the parties, was to be 11 cents, and all the, witnesses agree that that is a fair price for it. The referees allowed the plaintiff 50 cents per yard for the hard-pan excavation — precisely double the amount of the estimate of the engineer. The defendants contend, first, that by the written contract between the parties, the decision of the engineer, as to all the extra work and the allowance for it was made conclusive; and secondly, if it was not, that the report on this branch of the case is decidedly against the weight of evidence.
The contract makes no specific provision for hard-pan excavation. It fixes the price ’of common excavation at 9 cents per cubic yard, and of embankment at 11 cents ; for rock in ledge (r fragment 40 cents, and for slope wall 30 cents. All the evidence in the case shows that hard-pan was considered extra work, and that it was not understood by the parties as embraced in the term excavation or embankment. The company have uniformly made an extra allowance for it, of from 18 to 25 cents, as appears from the testimony of their surveyors and engineers, in this case. The provision of the contract which makes the decision of some competent engineer employed by
Secondly. Is the report upon this point against the. weight of evidence ? On the part of the plaintiff, John Bulger, Charles Burr, William Robinson, Isaac L. Hasbrouck, Joseph Chambers and Rice Cook, testified substantially, that a man could not excavate more than one cubic yard per day of this hard-pan, and that it was worth 75 cents per yard. Bulger, Robinson and Hasbrouck, have all worked upon this canal, and at this species of excavation, and appear to have had the means of forming a correct judgment upon the matter. Burr, Chambers and Cook, appear to have had no practical knowledge upon the subject; but formed their opinions from observing the progress made in this species of digging. On
But the defendants contend that the plaintiff’s recovery for hard-pan excavation must be limited to 30 cents per yard, he having charged it at that price in his bill of particulars. It is thus stated in his bill:
To 12,000. yards of hard-pan excavation, - $3,600
To other hard-pan, - - - - - 3,600
It will be perceived that the aggregate claim for hard-pan exceeds considerably the amount allowed by the referees, and that as to the last charge, neither the number of yards nor price 'per yard is stated ; and in relation to the first charge, it is matter of inference only. It would be giving a more strict and rigid construction to a bill of particulars than has been usual in this court, to hold the party restricted to the minimum price under such circumstances. The defendants evi
The plaintiff was entitled to recover for the lock gates. The question of partnership was disposed of by the verdict at
There is nothing in the newly discovered evidence to war-' rant a new trial.
Motion to set aside report of referees denied.