47 Ind. App. 466 | Ind. Ct. App. | 1910
Lead Opinion
— Appellant and appellees entered into a written contract, by the terms of which appellees agreed to construct for appellant upon its grounds a certain building and covered passageway, that would connect said building with one already standing on said ground, for which appellant agreed to pay appellees a certain sum. The building and passageway were constructed by appellees, as required by the terms of the contract, and the compensation named in the special contract therefor paid to appellees by appellant. After-wards this suit was brought by appellees to recover the value of labor performed and the material furnished by appellees in the construction of the passageway between the two buildings, based upon the theory that the compensation for such labor and material sued for was not covered by the price
It appeared from the averments of each paragraph of the complaint that the contract provided that appellant’s building committee was to select the location whereon the proposed building, the construction of which was the subject-matter of the contract, should be located; that at the time appellees made their bid for the work, they had before them the plans and specifications referred to in the contract; that the drawings thus before them showed the buildings, between which the passageway was to be constructed, to be ninety-seven feet apart, but the building committee located the site of the new building 203 feet from the old one, and it is for the expense incurred in the construction of this additional extent of passageway that appellees claim a right to recover. It is thus affirmatively made to appear by the complaint that the contract between the parties expressly required appellees to construct a covered passageway between the two buildings, and expressly conferred upon ap
The marrow of appellees’ claim is that the plans of the work at the time the contract was made fixed this location at a point ninety-seven feet from the old building, and that the action of the committee, in locating the building where they did, changed the plans as fixed by the contract, and required appellees to build 106 feet more of passageway than the original plans called for. The complaint nowhere avers that appellees at any time before the completion of the building and the reception by them of the contract price therefor, made any claim to appellant’s building committee, or the superintendent in charge of the work, that the construction of said passageway or any part thereof was any alteration whatever from the plans of the work as provided for in the contract, or made any claim that the construction of the passageway, as it was built, would entitle appellees to any compensation therefor in addition to the sum named in the contract as the price for the entire job. There is no attempt in either paragraph to charge that extra compensation for the construction of this passageway was agreed on beforehand by the parties, and the agreement expressed in writing, as required by the stipulations of the contract referred to. It seems to be appellees’ theory that the written contract between the parties, although it obligated appellees to construct the passageway between the two buildings, did not in any other respect govern the rights and obligations of the parties in respect thereto; that the passageway as constructed was such a wide departure from the original plans of construction as to take appellees’ right to compensation therefor entirely without the contract. ¥e cannot concur in this view.
If it were true that appellant so radically changed the plans of the work contracted to be done as that the terms of the written contract did not apply to it, then appellees
Our attention is directed by appellees to the case of Cleveland, etc., R. Co. v. Moore, supra, as an authority supporting appellees’ contention that the change in the plans of the passageway, alleged in the complaint to have been made, had the effect of taking the work, and appellees’ right to compensation therefor, out of the operation of the written contract between the parties. We have carefully considered the authority referred to, and, as we understand it, it is squarely against appellees’ contention. In that ease certain parties entered into a contract with a railroad company to do certain construction work, making cuts, building grades, laying tracks for extensive railroad yards, and carrying across the tracks of the railroad a public highway
Here it is the contractor himself who is waging the action. It is not pretended that he was ignorant of the facts regarding the character of the work, the terms of the contract, and whether the work was within the scope of the contract. As before stated, his ease is predicated upon the theory that the terms of the' contract required him to perform the work. If parties enter into a special contract regarding any subject-matter, and afterwards, by agreement, change and modify the subject of the contract so that it cannot be identified by the contract, the special contract could not be held to apply to such changed subject, as it was very properly held in the ease of Norton v. Browne (1883), 89 Ind. 333, to which we are referred; but this is not the ease here. Here the principal subject-matter of the contract in question was the construction of the new building upon appellant’s ground. The erection of the passageway between the new and old buildings was but an incident in the major subject, and it was clearly in the contemplation of the parties that this passageway should be constructed wherever the new building might be located by the parties, and it is expressly alleged in the complaint that the contract was so understood when made, and the parties carried out this construction in the execution of the work. Upon the facts stated in the complaint, appellees clearly had no right to any compensation for the construction of the passageway, additional to that provided for by the terms of the contract.
Rehearing
On Petition eor Rehearing.
— Appellees have filed a petition for a rehearing in this cause, supported by an able brief of their counsel. It is earnestly contended that the opinion of the court is erroneous, in that it does not correctly state the rule, as declared in the cases of Cleveland, etc., R. Co. v. Moore (1908), 170 Ind. 528, and Norton v. Browne (1883), 89 Ind. 333. "We have carefully examined these cases, and adhere to the construction set out in the original opinion.
It is also insisted that the opinion is based upon the unwarranted assumption that the building of the additional 106 feet of covered passageway, for the cost of which this suit was brought, was but an incident in the erection of the new building, and within the terms of the original contract. It is admitted that the contract was for the erection of a new building, and connecting it with an old building by means of a covered passageway. The work was to be performed in accordance with the plans and specifications, and was to be completed within a certain time for the sum of $43,985. The drawings from which the bid was submitted showed a covered passageway ninety-seven feet in length, but the new building was so located that a passageway 203 feet in length was necessary to connect the buildings.
The complaint sets out a copy of the contract, but fails to aver that the cost of the extra work was agreed upon beforehand, and expressed in writing on or attached to the contract. Without such averment, no cause of action was stated.
Rehearing denied.