28 Mo. 373 | Mo. | 1859
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 work the contract contemplated was to be performed, but what was the price to be paid for it. It is scarcely necessary to observe
By the contract, sixteen cents for the cubic yard was the price agreed upon for earth excavations. It is clear from the evidence that this was the usual price of excavating ordinary earth, for all the witnesses testify that the excavating of in-durated earth or gravel was worth a sum greatly exceeding the cost of excavating ordinary earth. It would thus appear that the defendants did. not make a contract involving any hazard. They did not for a given sum undertake to do the excavation, assuming the risk of the material of which it was composed, for the price fixed was such a one as was usually paid for removing ordinary earth. The contract then only fixed a price for excavating ordinary earth. As it was supposed that there would be nothing but ordinary earth to remove, the contract only provided a price for such excavations, leaving excavations of a more costly material unfixed as to price, as it was not supposed that there would be any such to bo made. This view of the subject is fully shown by the evidence of the engineer of the company, who surveyed the road in company with one of the plaintiffs, and who we must suppose disclosed all his knowledge to those who employed him.
Although by the terms of the contract the defendants were bound to make all the excavations necessary for grading the road, of whatever material they were composed, yet it does not follow that the price for removing one kind of material was that agreed upon for every kind. The obvious and
If no price was fixed for the excavation of the indurated gravel, then it was not within the contract, and the engineer had no authority to make an estimate of it. The defendant would be entitled to recover what it was reasonably worth. The engineer allowed extra compensation for excavating a portion of the indurated gravel because he thought it was right. If it was right to pay for a part, why was it not right to pay for the whole ? If the estimate of the engineer was conclusive, as was contended for the defendant, we do not see on what ground the plaintiffs did not recover the amount of it, if it was right in part. From the evidence of the engineer it appears that he was of the opinion that it would be right to pay the plaintiffs an extra compensation for excavating the indurated gravel.
We are of the opinion that the clearing of the road-bed admits of different considerations from those arising out of the excavating the indurated gravel. The trees standing in
Reversed and remanded.