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The jury found title thereto in defendant in error, and also by the 37th finding described what was stated to be "the premises in dispute" by metes and bounds, as conveyed to Deputron. The judgment, though using somewhat different language, conforms to the finding. There was no motion to set aside the verdict and for a new trial, nor can we discover that any suggestion of mistake in its terms was made below.

The governmental subdivision would be, if accurate, eighty rods long by forty rods wide, and the finding and judgment describe a tract fourteen hundred feet in length by seven hundred and fifty feet in width, less a parcel in the southwest corner, but excess in acreage frequently occurs in government surveys, and as the finding is that the description there given and followed in the judgment is the description of the premises in dispute, we perceive no ground for interference.

There being no error, the judgment is






No. 63. Argued November 4, 1889. Decided March 17, 1890.

M. contracted with a bridge company to construct the road for a railway, according to specifications and profile, from the end of its bridge to Evansville, about six miles. The road was to run on bottom lands, with an uneven natural surface, and the profile showed part trestle and part embankment. It was contemplated that the material for the embankments was to be taken from borrowing-pits along the line. The specifications fixed prices for excavation, for filling and for trestling, and provided that the relative amounts of trestle and earthwork might be changed at the option of the engineer without prejudice. During the progress of the work the company decided to modify the plan by abandoning the trestling in the line of the road, substituting for it a continuous embankment, and by making a draining ditch along the whole line, running through the borrow-pits. In order to serve its intended purpose this ditch was required to be of a regular downward grade, with properly sloping sides. Some of the borrow-pits were found to be

Statement of the Case.

too deep, and others too shallow, and it was found that they had been excavated without reference to the slope at the sides. There were highways and private roads crossing the line at grade. The contract did not indicate how the approaches of these roads were to be constructed; but when the change was determined on, it was decided to make them of trestle. This work was more expensive than the trestle provided for in the contract. The company directed its engineer to have these modifications carried out, and the contractor was notified of this. He made no objection to the substitution of embankment for trestling; but as to the ditch, he objected that it was not in the contract. A conversation followed, in which the contractor understood the engineer to say that it would be paid for at excavation prices from the surface down, but the company claimed that it was only intended as an expression of the opinion of the engineer, which, it said, was made without authority. As to the trestle approaches the contractor was informed that he would be paid what was right. The work was constructed in all respects according to the modified plans. In settling, the contractor claimed to be paid for the ditch as excavation from the surface down. The company claimed that the material taken from the borrow-pits should be deducted from the total. There were about 2800 feet in all of the trestle approaches. The contractor accepted payment for 2100 feet at the contract price, and as to the remaining 700 feet claimed to be paid according to what the trestles were reasonably worth. The company claimed that they should be paid for at the contract price; Held,

(1) That the construction of the ditch was outside of the original contract;

(2) That the fact that it passed through the borrowing-pits did not modify that fact;

(3) That the engineer had authority to agree with the contractors that they should be paid for it as excavation from the surface down; (4) That it was right to leave it to the jury to determine whether such an agreement was made between the contractors and the local engineer, acting for the company;

(5) That it was properly left to the jury to decide whether the company agreed to pay for the trestle approaches what they were reasonably worth;

(6) That as the agreement was to pay, not a fixed price, but what the trestling was reasonably worth, which the law would have implied, it was immaterial whether the agent of the company had or had not authority to make it.

THIS was an action at law brought by the defendants in error against the plaintiff in error in the Circuit Court of Vanderburgh County, Indiana, and removed into the Circuit Court of the United States for the District of Indiana.

The Henderson Bridge Company was a corporation of the

Statement of the Case.

State of Kentucky, organized for the purpose of building a bridge over the Ohio River from the city of Henderson, Kentucky, to the Indiana bank of the river, and a railroad thence to the city of Evansville, Indiana, a distance of about nine miles.

On the 8th of July, 1884, a contract was made between the company and the defendants in error for the grading, masonry and trestling of the railroad for a distance of something over six miles, measuring from Evansville to the bridge, designated as sections 1 to 6 inclusive, and a part of section 7, each section being one mile long. No formal written contract was executed between the parties; but the agreement arrived at consisted of, (1) specifications and profile of the work to be done, on the part of the company; (2) proposals on the part of the contractor; and (3) acceptance of the proposals by the company.

The specifications prepared by the chief engineer of the defendant classified the work as "Clearing and grubbing," "Excavations," "Embankments," Embankments," "Masonry," and "Pile Trestle."

Defendants in error completed the work about the 1st of March, 1885, and the company accepted it. On the final settlement a controversy arose as to the amount of the balance due the defendants in error, after crediting the partial payments made as the work progressed; and this suit was brought to recover the amount of $23,667, claimed by them to be due, which the company had refused to pay.

The bills of exception taken below, however, and the errors assigned, narrow the controversy in this court to two itemsone being in respect to a drainage ditch, which was ordered to be made; the other in regard to the value of certain extra pile-work. Our statement of the case will be confined to an examination of those points.

(1) The work contracted for lay, all except the two sections nearest to Evansville, through the bottoms of the Ohio River, which were subject to overflow. On that portion in the bottoms the profiles showed several stretches of trestling which aggregated 1486 feet. The specifications, however, provided

Statement of the Case.

that "the quantities marked on profile are approximate, and not binding. The relative amounts of trestle and earthwork may be changed at option of the engineer without prejudice."

While the work was in progress the company determined to modify the plan so as to omit the trestle and make a continuous embankment with underlying drain-pipes. This modification necessitated a different system of surface drainage; and it was determined that the borrow-pits (that is to say, the excavations along the line of the railroad from which the earth was taken to form the embankment) should form a drainage ditch on the eastern side for about two-thirds of the way. Mr. Hurlburt, who was the company's third engineer in rank, and had immediate supervision of the work in the field, was directed to have these modifications carried out.

In consequence of this change of the plan, Mr. Vaughan, the company's chief engineer, on the 16th of August, 1884, telegraphed O. F. Nichols, the resident engineer at Henderson, directing him to notify the defendants in error that "all trestle on portion of line embraced in their contract will be dispensed with." And on the 26th of August following Nichols wrote them as follows: "As directed by the chief engineer, Mr. F. W. Vaughan, I hereby notify you that the trestle shown north of station three hundred and thirty-three (333) on profile of the Henderson Bridge Railroad will be omitted. The corresponding space will be filled by solid embankment. Arrangements have been completed for additional borrow-pits necessary to complete these embankments." No objection was made to that change by the defendants in error. In regard to the ditch, however, it was different. Defendants in error maintained that no such ditch was called for either by the specifications or by the profile, and that, therefore, they were under no contract to make it. They claimed further, and there was testimony in the record to the point, that on the day after the receipt of Mr. Nichols' letter, Hurlburt, the local engineer in charge, came to see them, and notified them that they would be required to make said ditch on the eastern side of the embankment from section three to section seven, inclusive, for the purposes of draining the borrow

Statement of the Case.

pits, such ditch to be two feet wide on bottom in section three, three feet at bottom in section four, four feet wide on bottom in section seven, and to run through the borrow-pits, and have a slope of one and a half feet, horizontal measurement, to one foot perpendicular. Defendants claimed further that they objected, on the ground that they could not make the ditch without compensation, and that thereupon Hurlburt replied that they would be paid for it at the same price they had bid for excavation, and that it would be estimated from the top of the ground down.

The company, on the other hand, denied both the fact of the making of such alleged supplementary contract, and the authority of the engineer, Hurlburt, to make it. It maintained that the evidence showed only an expression of opinion made by Hurlburt.

The annexed rude diagram of a cross-section of the work will illustrate the situation.

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Defendants in error did not deny the fact of the coincidence, as stated, between the ditch and the borrow-pits, but they justified by saying that the basis of measurement adopted in their contract, while it was to a certain extent arbitrary, yet was not a cheating or improper basis, for the reason that it was a commutation, and was necessitated by the introduction of the continuous parallel ditch. The digging of such a ditch introduced, they claimed, an entirely new element into the work; it peremptorily demanded the careful maintenance of the ditch level throughout its whole extent, and required long hauls of dirt; and whereas, before the ditch was ordered, the excavation was made entirely with reference to the con

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