124 Va. 769 | Va. | 1919
Lead Opinion
delivered the opinion of the court.
Joseph L. Rosenberg let to contract the construction of a hotel in the city of Petersburg, according to plans and specifications which were made a part of the contract. Haymes Bros., general contractors, agreed to furnish all the materials and labor and do a complete job for a stated sum agreed upon with Rosenberg. The specifications, amongst others, contained the following clauses:
Under the title of “Excavating and Grading:”
“The contractors shall visit the site of the building and examine for himself the condition of the lot, and satisfy himself as to the nature of the soil.
“Excavate to the depth as shown by the drawings for the cellar, areas and outside entrances, and for trenches under all walls and piers, all trenches shall be excavated to the neat size as far as practicable, and each shall be leveled to a line on the bottom, ready to receive the foundation. The contractor must .be careful not to excavate the trenches below the depth shown by the drawings; should he do so, he must pay the mason for the extra mason work thereby made necessary, as under no conditions will* dirt filling be allowed.”
Under the title of “General Provisions,” the following:
“In any and all cases of discrepancy in figures, the matter shall be immediately submitted to the architect for his decision, and without such decision said discrepancy shall not be adjusted by the contractor, save and only at his risk; and in the settlement of any computations arising from such adjustment, the contractor shall bear all extra expense involved.
The general contractors sublet to the defendant in error, Turner, the brick work and excavating. The plans and specifications called for the excavation of a cellar of given dimensions to a depth of ten feet. After excavating to a depth of about two feet, Turner struck solid rock. This was a great surprise to Turner, Rosenberg, the supervising architect, and every one connected with the work. Thereupon, Turner stopped work and notified the supervising architect, who was the same person who had drawn the plans and specifications, and Rosenberg, that he did not consider blasting within the terms of his contract and that he would proceed no further unless" he was paid for the blasting as extra work. Turner was a sub-contractor, and up to this time had no contract with Rosenberg. ■ He claims, however, that the supervising architect was the agent of Rosenberg, and, as such, authorized him to proceed with the blasting as extra work. He completed the work, and presented to Rosenberg an account of the actual costs thereof, which Rosenberg refused to pay, and thereupon Turner proceeded by motion for a judgment against Rosenberg, and obtained the judgment to which this writ of error was awarded.
The notice of the motion is quite vague as to the contract upon which it is founded. It simply describes it as “a certain special contract or account, a copy of which is hereto attached,” but no contract is attached, only an account for labor and materials. In the bill of particulars which the plaintiff was required to furnish, he states that the la
If the removal of solid rock, as well as earth, was within the meaning of the word “excavate” used in the specifications, which Turner had seen and inspected, although the presence of solid rock was a surprise to him, he had no right to demand extra pay for its removal. It was important, therefore, for him to show that it was not so included. This he attempted to do by showing that, by a local custom or usage in Petersburg, the word “excavate” in such contracts did not embrace solid rock, but referred only to earth and loose material. Turner himself apparently recognizes the fact that ordinarily “excavate” covers stone as well as earth, for he says, when examined as to the local custom, “if the parties know there is rock there it is specified specifically.” It is then and then only that the word “blasting” is used, and hence the necessity for falling back on the custom. The evidence offered on the subject consisted of the testimony of the plaintiff himself and of one pther witness. On this subject, the plaintiff testified as follows:
“Q. In the custom of the trade here, in contracting, what is the meaning, or the generally accepted meaning, of the word “excavating”?
“A. We always figure it as meaning excavating only earth, or soil, and we took it for granted that this was soil, particularly so, all that way through, because he specified, if you dig a foot deeper, it shall not be filled up with soil,*774 but would have to be built back up with brick—even a foot deeper than the plans showed.
“Q. According to the custom of the trade, is there any special term which is currently and ordinarily used here in reference to the removal of hard rock, solid rock?
“A. Well, if the parties know there is rock there, it is specified specially.
“Q. Well, in speaking of removing hard rock, in what terms would you speak of it?
“A. Blasting the rock.
“Q. So that, as I understand it, when you used the term ‘excavating,’ you mean the removal of earth and loose dirt, and when you are referring to the removal of hard rock you used the term ‘blasting’?
“A. Yes, sir.
“Q. That is generally customary in the trade around here, is it?
“A. Yes, sir.”
The witness, Wilkinson, testified as follows:
“Q. Have you ever done any contracting yourself?
“A. Yes, sir, I have; I am contracting now.
“Q. According to the custom of the trade, what is the meaning of the term ‘excavate’ when used in a contract?
“A. According to the custom that we have here in Petersburg, all excavations are of dirt. When it comes to any blasting, that is stone; that is blasting strictly. It is just the removal of dirt and any other debris that may fall in from a burned building, or anything like that—any loose stuff.
“Q. And when you speak of removing solid rock, you usually use the term ‘blasting’?
“A. Yes, sir.”
We have not deemed it material in this case to consider whether or not it is necessary for the party relying upon a local custom or usage to set it up in his pleadings. On that question the authorities are in conflict. Oriental L. Co. v. Blades L. Co., 103 Va. 730, 741, 50 S. E. 270, and authorities cited.
“2. If the plaintiff, who, as sub-contractor, was making the excavation, in prosecuting the work of excavation, struck rock which required blasting, and thereupon notified the supervising architect that blasting was not contemplated in the contract and would be extra work; and if the architect directed him to proceed with the work, but keep a separate account of the cost of the blasting, and that he would be paid therefor, then, under the contract, this decision of the architect was binding upon his principal, the defendant, and the jury should find for the plaintiff.”
“3. If, however, the architect informed the plaintiff that the blasting was covered by the contract and was not extra work, but directed him to proceed with the work, keeping
No objection is made to instruction 3. Objection is made, however, to instruction 2, because it “fails to inform the jury that the consent of the owner was necessary before the architect could order extra work. Moreover, under the contract in this case, it was not for the sub-contractor, Turner, to decide what was extra work. It was provided by the contract and specifications that the decision of the architect, Mundon, should be final and binding. Mundon decided that the excavation of the cellar to the depth shown in the drawings was not extra work.”
The two instructions should be read together, as they present the two opposing theories of the plaintiff and the defendant, and when so read, we do not think they are amenable to the objection raised. Under the contract between the defendant and the general contractors, it was the province of the architect to decide whether work was or was not extra, and the owner’s consent to such decision was given when he signed the contract.
For the reasons hereinbefore stated, the judgment of the hustings court is affirmed.
Concurrence Opinion
concurs in the foregoing opinion, except in its conclusion as to the usual and general meaning of the word “excavate,” as used in building contracts and as used in the case in judgment.
Prentis, J., concurs in the result.
Affirmed.