Dubois vs. The Delaware & Hudson Canal Company, 12 Wend. 334

By the Court, Sutherland, J. 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 the defendants final and conclusive in all matters in dispute between the parties, relates, I apprehended, exclusively to matters embraced within the contract.

It is as follows: “It is agreed that some competent engineer, in the employment and to be selected by the said company, shall be the inspector of said work, and shall estimate the number of cubic yards of excavation, and the number of cubic yards of embankment, and the value of any extra, work that may have been caused by an alteration of the line of the canal, and determine every other question necessary for the adjustment and final settlement of this contract; and his estimate and decision shall be final and conclusive between said parties.” The extra work, the value of which is to be definitively settled by the arbitrator, isjextra work caused by an alteration of the line of the canal, and the other questions are such as may be necessary for the adjustment and final settlement of the contract.

The enumeration of one species of extra work is, upon well settled principles, an exclusion of all others; and claims for which the plaintiff never could have any remedy upon the contract (but only for services rendered upon a quantum meruit,) cannot be considered as presenting questions involving its final settlement and adjustment. Considered as a submission to arbitration, or an agreement to submit, this provision of the contract cannot, I think, be so construed as to embrace the plaintiff’s claim for hard-pan excavation.

He is therefore entitled to recover upon a quantum meruit, whatever he can show it to be worth. 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 the other hand, we have the testimony of James McEntee, the resident engineer, who states that the allowance for hard-pan ranged from 18 to 25 cents; that 25 cents was the highest Pr’ce Pa^> anc^ was a fa'r compensation. He was confirmed by John B.

Jervis, also an engineer on this canal, that 25 cents was tjje highest price ever allowed, and that many contracts had been performed at less than that, without complaint. Mr. Jervis, however, did not say that he considered 25 cents the full value of hard-pan excavation, but only that it was more than was allowed to and other contractor on the line of the canal. Mr. M’Entee’s testimony was probably entitled to more weight than that of any other witness. It was his offi-. cial duty to make himself acquainted with the value of every species of labor necessary to the construction of the canal.

Great reliance was probably placed upon nis estimates and Judgment by the company. But giving ^o him every advantage in these respects over the other witnesses, it is impossible to say, as the evidence appears upon paper, that the report of the referees, so far as it depends upon the testimony to which I have adverted, is against the weight of evidence. They appear to have adopted the medium price between that fixed by the plaintiff’s and that by the defendants’ witnesses. The one estimated the hard-pan excavation at 75 the other at 25 cents per yard, 'fhe referees allowed 5(5 cents.

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 evidently were not misled in this case. They came to the hearing prepared to contest the value of this service. It was the principal matter in dispute ,bet ween the parties — not the quantum, but the price of the hard-pan excavation. No objection was made 1 " by the defendants to the plaintiff’s evidence upon this point.

Ail the witnesses testified that it was worth 75 cents per yard, and the defendants, instead of raising the objection that the plaintiff was limited to 30 cents by his bill of particulars, treated it as an open question, and produced other witnesses to show its real value.

It is true that the counsel for the defendants, after the testimony was all given in, suggested to the referees that the plaintiff could not recover more for the hard-pan excavation than the price stated in his bill of particulars ; but the objection at that time and in that form was entitled to less weight than though it had been specifically made to the admission of the evidence itself. But 1 am inclined to think that it could not have been made with effect in this case, even in that form. In Bell v.

Puller, 2 Taunt. 285, the plaintiff, by his bill of particulars, claimed a balance of £1600, but the jury found a verdict in his favor for rising £3000, for which he entered up judgment. The court, upon a motion subsequently made, refused to reduce the judgment to the sum claimed by the particulars — remarking, that although the plaintiff had recovered beyond his bill, he had obtained no more than in the judgment of the court he was entitled to, and that no injustice was occasioned by the excess.

Where the bill is specific in relation to the items or the price, evidence going beyond it is not admissible, if objected to in due season; but if the evidence is given without objection, and the court see that the plaintiff has in fact recovered no more than he was justly entitled to, they will not reduce the amount or grant a new trial on that account. This is the spirit of all the cases. 5 Wendell, 48. 1 Bos. & Pull. 49. 4 Esp. 7, 147. id. 452. 2 Taunt. 224. 1 Campb. 68. 5 Taunt. 228. 1 Com. Law R. 88, S. C. Graham’s Pr. 436, and cases there collected. The plaintiff was entitled to recover for the lock gates.

The question of partnership was disposed of by the verdict at the circuit. But if it had not been, the evidence failed to establish the fact. There is nothing in the newly discovered evidence to war-' rant a new trial. Motion to set aside report of referees denied.