Opinion
Argued March 9, 1914
Decided June 9, 1914
James M. Gray for appellant.
Frank L. Polk, Corporation Counsel ( Terence Farley of counsel), for respondent.
I think that the judgment appealed from must be reversed.
I do not assent to appellant's contention that there is a difference in the meaning of the terms "embankment in excess of excavation" and "earth filling furnished," used in the contract and various instruments connected therewith and forming a part thereof. Actually the two phrases, as a basis of payment to the contractor, mean the same thing. Embankment simply defined that which was produced by filling, and in computing the amount of material furnished and placed by the contractor it would make no difference whether it was described as embankment or as filling. This similarity in meaning is emphasized by the provision in connection with each phrase, that for the purposes of payment to the contractor it only covered that which was produced or furnished in excess of the material derived from excavation. Still further, the series of clauses 10-15 in the specifications, which have been quoted, both by their title, "Filling and Embankment," and by their provisions, make it apparent that embankment is to be treated and computed the same as filling.
Neither do I give the importance, which is asserted in behalf of the appellant, to the fact that in the contract proper the printed blank which originally read "earth filling furnished" was changed to "all embankment in excess of excavation," wherefrom it seeks to give especial emphasis to the word "all" as justifying a different measurement than was applied by the engineer of the city to this item of work done by the contractor.
As I have indicated, in my opinion the two terms "embankment in excess of excavation" and "earth filling furnished" actually mean the same thing. They were used interchangeably in the various instruments which made up the contract, and I think that the explanation of the change in the printed blank already referred to may be found outside of the reasons given by appellant. In the published proposal for this work the term used was "earth filling furnished," but when the contractor made his bid he evidently used a printed blank, in which the term employed was "all embankment in excess of excavation." Under these circumstances it was quite natural that the agreement which followed the bid should employ the precise language which had been used in the latter, and I think this is the explanation of the change in the blank. If we do not assume that these terms are interchangeable, then we have it that a bid and agreement have been made and executed for an item of work which was not included in the published proposal for bids, and which proposal it may be assumed was followed in verbiage by the published advertisement for bids.
If the foregoing view is correct, then the word "all" in the clause referred to in the agreement ceases to possess the significance urged for it. It is argued that it is to be construed as indicating an intention to include as embankment everything which generally would answer to that description, but it seems to me that the clause is to be construed in connection with the other provisions of the contract, and doing this the clause provides for payment for everything in the way of embankment when measured as such in accordance with the other provisions of the contract. If there is any provision in the contract prescribing a particular method of computing embankment and filling which excludes allowance for material sinking below the original surface of the ground, the effect of this provision would not be nullified by the use of the word "all" in the phrase quoted. Thus far, therefore, I agree with the reasoning which has led to the judgment in behalf of the city, but at this point I encounter difficulties in affirming the judgment which I have not been able to avoid.
Clause 14 of the specifications, which has been quoted and under which the computation has been made of which appellant complains, provides that "The total amount of filling done will be determined by calculation, and will be only so much as is included between the elevation of said surface of deposit, as recorded by the engineer, and the grades hereinbefore set forth." This clause, therefore, requires, as a basis for its application, a record by the engineer of the surface of deposit. As already indicated, I think this clause was intended to provide for the measurement of embankment in this case, and I have no doubt that the engineer might have recorded as the surface of deposit the original surface of the ground, and that if the contract had been made on that basis the contractor would be bound by it and there would be no right of recovery for material which sank below such original surface of the ground even though we should believe that equitably and properly the surface of deposit should have been made the firm foundation to which the material finally sank. The computation for filling accorded to the contractor has been made in behalf of the city on the basis that such surface of deposit was fixed and recorded by the engineer, and for the purpose of sustaining this interpretation of the contract our attention has been called to three lines drawn on the blue print map which concededly is to be considered in connection with the contract. But the trouble with this theory is that there is nothing on the map or elsewhere in the instruments considered and executed by the parties to indicate, conclusively at least, that these lines were the record of the surface of deposit as provided by the clause which has been quoted. One witness called by the appellant testified, in substance, that from his experience and knowledge as an engineer he would know or assume that these lines did indicate such surface of deposit, but the appellant proved and sought to prove by another witness that they would not be thus understood. It seems to be conceded that these lines did indicate the original surface of the ground, and perhaps it might be assumed in the absence of evidence to the contrary that unless some other one was indicated, the original surface of the ground would be such surface of deposit. But that presumption cannot prevail as a matter of law in this case, because evidence was admitted without objection that where filling is to be done on marshy land as this was, the surface of deposit accepted and considered by engineers is the solid foundation finally found by the material as it sinks through the marshy land.
In addition to this, it is significant that the proposal and estimate for this work did specify as the amount of filling to be done a quantity which corresponds with a surface of deposit, not at the original surface of the ground, but at the submerged level where the deposited filling finally found a foundation. Under these circumstances I do not think that we can hold as matter of law that the lines drawn on the blue print map and referred to in behalf of the city were intended or understood by the parties to be that record of the surface of deposit provided for by the specifications and on which the computation made by the engineer can rest. If it should be properly determined as a matter of fact or, through additional evidence as matter of law, that the parties did intend and understand them to be such, then in my opinion the measurement made by the engineer which disallowed any compensation for earth sinking below the level of those lines would be valid. But if, on the other hand, it should be determined that these lines were not thus understood and intended and binding on the parties it would result that no surface of deposit was indicated and recorded by the engineer, and in that case I see no reason why the amount of embankment and filling furnished by the contractor must not be measured in such manner as would be lawful and proper independent of the provisions of said clause 14.
For these reasons I advise the reversal of the judgment and that a new trial be granted, costs to abide event.
CHASE, COLLIN, CUDDEBACK and CARDOZO, JJ., concur; WILLARD BARTLETT, Ch. J., and MILLER, J., concur in result.
Judgment reversed, etc.