
    HUGH L. GALLAHER ET AL. v. THE DISTRICT OF COLUMBIA.
    [No. 21.
    Decided May 26, 1884.]
    
      On the Facts.
    
    A contract is made for the continuation of a sewer, the construction and size of the new work to be similar to the old. Bqt the specifications do not agree, some of the variations being to the advantage of one party, and some to the advantage of the other. The parties disregard the specifications and the work goes on according to the sample of the old sewer, until a new engineer makes deductions for variations unfavorable to the defendant. The contract requires “connections for lateral sewers." Connecting links are rendered necessary by a change in the direction of the main sewer. The engineer orders extra .foundations and a perpendicular apron wall at the mouth of the sewer; also man-holes; also a cut-stone fapade. After the work begins the contractors offer $1 a perch “for all the stone in the old canal," it being mutually supposed that it can be used in the work. The engineer rejects it, the contractors cease to excavate, and leave it in the defendant’s possession.
    I.Where a contract requires work to be done according to sample and specifications, and, the two being irreconcilable, the engineer in charge orders a modification to which the contractors assent, the modified work must be regarded as performed and accepted at the contract price.
    II.The term “connections for later'al sewers" in a contract means proper openings and the joining of lateral sewers thereto, but not the construction of links necessary to bring the lateral within joining proximity of the main sewer.
    III. “$113 a foot as full compensation” for building a sewer “in all respects complete" must be deemed to include extra foundations and a perpendicular apron wall at the mouth of the sewer rendered necessary by the character of the soil.
    IV. A cut-stone fagade ordered by the defendant’s engineer if merely ornamental cannot be deemed a requirement of a contract unless specified therein.
    V.A contract to complete a sewer in good, firm, and substantial manner must be deemed to include ordinary man-holes.
    VI.An agreement that damages arising from unforeseen difficulties shall be sustained by the contractor, covers unforeseen expense in carrying the work under the track of a railroad.
    
      VII. Where a contractor proposes to purchase stone on the defendant’s. land, it being mutually supposed that it is suitable for his work, but the defendant’s engineer subsequently rejects it, and the contractor leaves it on the ground, he will be held liable for only so much as he used.
    VIII. Where the site of a work has been changed by mutual consent, a provision in the contract requiring.the contractor to do certain work upon the original site cannot be enforced.
    
      The Reporters’ statement of the case :
    The following are the facts of this case as found by the court, omitting some matters of detail:
    I. The Tiber Creek, prior to the year 1871, was a natural stream of water flowing through the city of Washington and discharging into what was then known as the W ashington Canal, on Third street west, between Maine and Missouri avenues, and by that into the Eastern Branch.
    Among the improvements projected by the Board of Public Works was that of utilizing this stream in connection with the sewerage system of the city, and the general plan adopted was that of constructing a main sewer of masonry and brick-work along its course, through which the stream should flow, receiving and conducting the sewage from lateral connections on either side.
    It was constructed for the most part in sections by contract with different parties, and the part here in controversy was the final or outlet section. It was commonly styled the Tiber Creek sewer or arch.
    II. On and before July 14,1873, a portion of this sewer had been completed, which (so far as is here material) extended from the north side of Pennsylvania avenue, across the Botanical Garden, into Third street., and along and under Third street to a jrnint 3 feet north of the south building line of Maryland avenue, at which terminus the sewer was (so far as here material) of the following constrüctioñ and size, namely: the side walls were of masonry'about 3 feet .high and 5 feet 6 inches thick, supporting an approximate semi-elliptic arch of 30 feet span and 7 feet 10 inches rise. ' The estrados of the arch, including the skew-back course, was- backed up with rubble masonry to the level of its crown. The timber sleepers for the foundations were 41-feet in length. _ ■
    
      III. Proposing to continue the sewer to its outlets with the same construction and size, the Board of Public Works, on July 14, 1873, sent the following written proposal to H. L. Gallaher & Co., consisting of Hugh L. Gallaher and Edwin H. Smith:
    “Board of Public Works,
    “ Washington, D. C., July 14, ’73.
    “Messrs. Gallaher & Co.: "
    “Gentlemen: The contract for continuing the Tiber sewer from its present terminus at Maryland ave. and 3rd st. SW., along the line of the Washington Canal to its junction with the James Creek Canal, has been awarded to you. The size and manner of construction of the sewer will be the same as that of the portion of the same sewer constructed on 3d st. SW., and will be paid for at the rate of one hundred and thirteen (113) dollars per lineal foot, payable in sewer certificates issued under act approved June 26, 1873, entitled ‘An act creating drainage and sewerage sections in the cities of Washington and Georgetown, in the District of Columbia, and providing for the payment of the construction of sewers and drains therein by assessments and issuing certificates therefor.’
    “The construction to be begun at the lower end at once, and at least two hundred (200) lineal feet to be completed within thirty days ; after the mortar of that section has properly set, the track of the Baltimore and Potomac R. R. to be temporarily located over it and piles driven in the old bed of the Washington Canal so as to allow of the connection of the sewer with the James Creek Canal.
    “ The work to be commenced within ten (10) days, and completed within six (6) months, and subject to the approval of the engineer and inspection of the superintendents.
    “A penalty of (100) one hundred dollars will be charged for each and every day the work shall be in progress after the expiration of the six months.
    “ You will notify the Board by return mail of your acceptance or rejection of this contract.
    “Very respectfully,
    “Alex. R. Shepherd, V. P.”
    These parties replied as follows:
    “Office 482 Pennsylvania Avenue,
    
      “Washington, JD. G., July léth, 1873.
    “Hon. Alex. R. Shepherd,
    “ V. President Board of Public Works:
    
    “Sir: Your letter of this date notifying us ‘that the contract for continuing the Tiber sewer from its present terminus at Maryland ave. and 3rd. st. SW., along the line of the Washington Canal to its junction'with the James Creek Canal, has been awarded to you,’ has been received.
    “In reply we have the honor to state that we do hereby accept the contract, subiect to all the conditions and requirements set forth in your letter.
    “ Cordially thanking you and your honorable board for the confidence reposed in us, we pledge ourselves to use every effort and resource at our command to give entire satisfaction, and to complete the work in the most substantial, durable, and skillful manner.
    ' “Yéry respectfully and truly, your ob’d’t serv’ts,
    “H. L. Gallaher & Co.”
    A contract, bearing date July 19, 1873, was executed between said parties which (so far as material) is in the same $erms as that of the claimants’ set forth in the petition, under which Gallaher & Smith commenced the work. Before they commenced it Sumner EL Bodfish, an assistant under Adolf Cluss, the District engineer, was instructed to give the grade of the sewer, to be laid out with the same dimensions as of the existing sewer, which he did in the summer of 1873. It was proposed, however, to deviate from the contract, by which the continuation of the sewer was to follow and be laid in the bed of the canal, so as to take it by a curve from the point of connection on the westerly bank and then proceed parallel with and along said bank todhe terminus, as shown on the plan annexed to the clai mants’ contract. This course was recom mend ed by Bodfish, and finally adopted by consent of the parties.
    IY. About the time of giving the grade Gallaher applied for a plan of the sewer showing, among other things, the thickness of the spandrel walls, and said Bodfish made, by direction of the engineer, a plat or working drawing of the structure in transverse section, exhibiting its form and dimensions according tó a fixed scale, and representing a structure similar to that .of the said completed section at the point of connection aforesaid. Gallaher & Smith-then proceeded with the work in accordance therewith, and completed some part of the excavation, and procured and brought on the ground material, but had not constructed any portion of.the arch, when the claimants, Joseph G. and Henry B. Loane, bought out the interest of said Smith, and such proceedings were had that the said contract was, by agreement of the parties, canceled, and a contract in •similar terms executed on December 22,1873, by the said board with the claimants, as composing the firm of Gallaher, Loane & Co., which contract is set forth in claimants’ petition.
    • Y. The claimant s, on entering into said contract, received from said Gallaher & Smith the said working plan. It represented the plan and dimensions of the several parts of the structure of said sewer to be built under their contract, and was similar to the previously completed section with which it was to connect, as provided by the contract, and was the plan under which the work had been commenced and carried on. They proceeded with the work in accordance with said plan, and without calling the attention of said board to any alleged or apparent variation of the same from the contract, and constructed the flooring, masonry, and arch according to the dimensions appearing thereon, and had finished about 680 lineal feet thereof, when the said board was abolished by act of Congress of June 20, 1874. The 680 feet was constructed under the direction of the District engineers, but neither they nor the Board of Public Works intimated to the claimants that the work was not progressing to their satisfaction, and in accordance with the former sample work, in which the skew-back was constructed of rubble masonry.
    YI. Under the new form of government established by that act for the District, Bi chard L. Boxie was detailed as engineer on July 6,1874, and forthwith made a careful examination of the work being done by claimants, as to its character and conformity with the specification of the contract, in the presence of one of the claimants. He found that generally it was being built in conformity with the specifications, but there were several departures. The flooring and sleepers were, as he thought, inferior to the quality required; the masonry was not strictly in conformity with the specifications; there were too few bond stone used; the inside walls were not dressed, and the stone generally were small. But what attracted his attention and was of the most importance was the manner of constructing the skew-back. It was made of small stones, spalls, and mortar, while it should have been made, as he thought, of large dimension stone. He called the attention of the party present to these alleged variations, and particularly to the skew-back, which he wished constructed of dimension stone. He was informed that to procure the stone would cause considerable delay in the prosecution of the work. Thereupon he directed that the skew-back might be made of brick, and added that he should make a deduction in price, but named no sum. Thereafter claimants proceeded with their work, making the skew-back of brick, under the direction of defendant’s engineers, without further complaint.
    VII. In August, 1874, the claimants applied for measurement of the work so far as completed, and a partial payment. The engineer, on August 14, 1874, transmitted to the Board of Audit, which, by the act of June 20,1874, was charged with settlement of such accounts, the following statement, with the measurement requested:
    “Engineer’s Oeeice, District oe Columbia,
    “ Washington, Aug. 14, 1874.
    “ To the Honorable Board oe Audit :
    “ Gentlemen : I have the honor to transmit herewith measurement to date upon contract No. 1012, Gallaher & Loane & Co. *■-
    “With this measurement-1 submit the following-, which, in my judgment, should be deducted from the same: The contract requires the inside (sewer) face of the stone wall rough dressed, and a skew-back stone not less than a 3-foot 6-inch bed, and in length of not less than four feet. These requirements of the contract have not been complied with. The masonry, as required by the contract, was estimated by the late B. of P. W. (and which estimate was made the basis of the contract) thus:
    Cost per perch................ ......................$7 00
    To which was added 25 per cent, for contingencies on account of constructing the sewer in the bed of a stream. 1 75
    $8 75
    “ This figure was still more increased by the allowance of 16tl per centum on account of the failure of the Board to pay in cash, thus making the cost per perch of masonry $10.18.
    “The kind of masonry actually built would have been estimated thus:
    Cost per perch............ ......................... $6 00
    25 per cent, for contingencies.......l................ 1 50
    $7 50
    16^ per centum for discount................... .... 123
    Cost per perch....................■................. $8 73
    “ Deduct this from the cost ($10.18) of masonry required, exhibits a difference in the value of the masonry of $1.45 per perch, and there being 6¿ perches per lin. foot of sewer, of $8.94 per lin. ft. of sewer; total deduction $8.94 x 496.35 = $4,437.37.
    “ Very respectfully, &c.,
    “ E. L.' Hoxie,
    “ Lt. Engineers U. 8. A., and Engineer É. 0.”
    The Board of Audit audited the said account with a deduction of $8.94 per lineal foot from the contract price, in accordance with the statement of the engineer. The claimants received the partial payment, but filed with the Board of Audit the following protest by their attorney : ,
    “Office Board of Audit,
    “ Washington, IJ. G., Aug. 14, 1874.
    “ To the Board of Audit :
    
    “ Messrs. Gallaher, Loane & Co., whilst protesting against the proposed deduction as recommended by the engineer, ask that certificates may be issued for the amt. he admits to be due, reserving for future consideration the question of the deduction. This is in accordance with the views of the engineer, as I understand them. T proposed to furnish evidence to him against any reduction, if he considered that the matter came up now for final settlement. But he declined to receive the testimony on the ground that this would not be a final settlement for so much of the sewer as was now finished.
    “ Eespectfully,
    “Montgomery Blair.”
    The engineer continued to return the various measurements thereafter made to said Board of Audit with a like deduction ■of $8.94 per lineal foot from the contract price, and the claimants to receive them under their former protest.
    VIII. The portion of the sewer built by the claimants was •3,184.4 feet in length, and at the contract price, $113 a lineal foot, amounted to $359,837.20. Upon this amount the claimants have been paid $324,400.71, leaving unpaid $35,436.49.
    IX. Prior to the construction of said section of the sewer the ■sewage of the adjacent region was discharged in said canal by lateral sewers, and among these were the following, the outlets^ of which were in the easterly bank or wall of the canal, namely: A lateral sewer discharging in the canal at Delaware avenue; ■also, like sewer at C and B streets, at Maryland avenue. After the contract was made a change of location of the sewer-from the bed of the canal to its westerly bank was agreed to by both parties, and was supposed to be advantageous to both. .The change made it .necessary, however, to carry the said lateral sewers across the bed of the canal in order to connect them to the main sewer, and the work of connecting the said sewers was done by the claimants under the following order and direction of the engineer : '
    “ Engineer’s Office, District of Columbia,
    “ Washington, April 26th, 1875.
    ■“ Mess. Gallaher, Loane & Co., City :
    
    
      “ Gentlemen : You will please commence, as soon as the water iá turned into the sewer at Md. ave., to take up all connections along the line of the canal, and carry them across the bed of the canal, in order that filling may be commenced at once. . '
    “ By order of the engineer:
    ' Erank’n T. Howe,
    
      “Chief Cleric”
    
    X. The outlet of said sewer, was in what is known as the James Creek Canal, the head of which was near but not connected with the said Washington Canal. The flow and fall of the water at said outlet was such that the sewer would not have been left in a complete or safe condition if its terminus had not, been constructed with what is called an apron wall, being a wall of masonry supporting the terminus for the water to flow over, and carried down to the bottom of said James Creek Canal, to protect the sewer from being undermined there by the flow and fall of the water. This work was performed by claimants under direction of the engineer. As a part of the same construction, and for protection of-the end of the sewer, the abutment walls were supported by extra foundations of masonry and timber on each side back from the terminus.
    XI. By direction of the engineer the claimants constructed a cut-stone fagade at the terminus, forming the subject-matter of the claim for extra work set forth in Abstract H in the petition. The reasonable cost was $1,852.69.
    XII. The course of the sewer as planned was intersected by the embankment and tracks of the Baltimore and Potomac Railroad at a point near G street, and before undertaking the eon-structioh of the sewer through the said embankment the claimants, having constructed the part of the sewer immediately ¡north of said railroad track, applied for and obtained the true grade for 125 feet south of said track, which was surveyed by David E. McOomib, aud pegs driven along the center line, and a plat of the grade given for the contractor’s guidance. By some mistake, the fault of the claimants, about 125 feet of sewer was constructed along the line of said grade, but on a different and erroneous grade, and when the error was discovered the brick arch had been completed as to a part, and as to a part the side of wall of masonry and flooring only. The claimants were required to rectify the erroneous construction, but were spared the labor and expense of tearing down and rebuilding the completed work, and permitted by the engineer to bring the sewer in that portion to grade by lowering the floor and putting in a brick invert. Where the arch had not been built the claimants were required to take up the abutments, flooring, and logs so far as laid at the wrong grade. After this work was begun the engineer .changed the plan 6f it, and the extra cost thus occasioned by the defendant was $57.50.
    XIII. The sewer was completed from the northerly side of the railroad track and connected with the upper section at Maryland avenue, so that the water and sewage ran into the claimants’ section, instead of the canal, before the connection through the embankment of the railroad was constructed, and this made it necessary to provide in some way for the temporary diversion of the said water and sewage into the canal above the railroad. This was accomplished by a dam which the claimants built across the sewer for their own convenience in the work, whereby the contents of the sewer were turned into the canal until they could complete the portion below.
    XIY. The claimants, at the request of defendant’s engineer, cleaned out a portion of the Maryland avenue sewer before connecting it with the Tiber Creek sewer, at a cost of $45.87. It does not appear that the deposit removed from the sewer was caused by the claimants, nor that its removal was for their benefit or convenience.
    XY. Two iron manholes were built in the sewer by the claimants, at an expense of $61.75. All properly constructed sewers-have manholes, and generally about 200 feet apart.
    XYI. When the work on the sewer was approaching the track of the Baltimore and Potomac Bailroad, the company filed its bill in the supreme court of the District of Columbia against both parties to this suit, praying that the claimants provide a temporary support for the railroad track while building the sewer, and build the sewer in such a manner as to furnish a safe, permanent roadway for the running of trains. The claimants were temporarily restrained from proceeding with work on the sewer, and, on the motion to dissolve the restraining order, were required in constructing the sewer to proceed with the work in accordance with the prayer of the bill, the question of the liability for the extra expense thereby incurred being reserved for the final hearing. The work of constructing the sewer under the railroad was done in accordance with this order, and the extra expense of so doing it was reported by the auditor of the court to be $6,147.41. On the final hearing before the court below it was. decreed, that the Baltimore and Potomac Railroad Company was not liable for this sum, and on appeal to the general term the decree was affirmed.
    XVII. At the Maryland avenue connection the claimants furnished, at the request and for the use of the defendant, two sticks of timber worth $18. It does not appear to have been required by the contract.
    XVIII. In the banks of the old canal was a quantity of stone, estimated by the engineer at 7,176 perches, belonging to the defendant. In relation thereto the following correspondence occurred:
    “Washington, FeVy 20, ’74.
    “Hon. Henry Willard, .
    “ Vice-President of B. of Public Works:
    
    “Dear Sir: We will pay you one dollar per perch for all the stone in the old canal- from Maryland avenue to the mouth or terminus of the canal.
    “Respectfully, your ob’d’t servants,
    “Gallaher, Loane & Co.”
    “ March 10,1874.
    “Messrs. Gallaher, Loane & Co.,
    “ No. 356 Missouri avenue:
    
    “ Sirs : In reply to your letter of the 20th ult., offering $1 per perch for stone in the old canal from Maryland ave. to the terminus of the canal, I am directed by the Board to inform you that your offer for the stone is accepted, but in removing the same the old channel must not be obstructed thereby until the new sewer is ready to receive the drainage.
    “Very respectfully,
    Chas. S. Johnson,
    “Secretary.”
    
      It does not appear that the claimants had any need of the stones or any purpose in the purchase of them other than to use them in the walls of the sewer. They dug out from the banks of the canal about 100 perches of stone and began to lay them in the walls of the sewer. They did not prove to be fit for these walls, and the engineer forbid their use. Thereafter no more stones were taken by the claimants. A few that were dug out of the banks and not used in walls were subsequently used by the defendant. The remainder were left as before in the banks of the canal, which was under the control of the defendant. What became of them does not appear.
    The defendant sold to the claimants one steam-pump for $1,000, a quantity of sewer-pipe for $366.50, and gravel for $12.50. No arrangement appears to have been made for the payment of these items, from which it appears that it was the intention of the parties that they should be credited upon the contract.
    . XIX. The claimants did not fill the Washington Canal from a point 40 feet north of the north part of the sewer to the south end thereof, but did fill against the sewer walls in its new location. The reasonable cost of filling the canal was $12,711.
    
      Mr. William Pinlmey White and Mr. Woodbury Blair for the claimants.
    
      Mr. John O. Fay (with whom was the Assistmt Attorney - General) for the defendant.
   Soopield, J.,

delivered the opinion of the court:

December 22, 1873, the claimants contracted with the Board of Public Works to build the unfinished part of the Tiber Creek sewer. Under this contract they constructed 3,184.4 lineal feet. The contract price was $113 a lineal foot. The work done at this rate amounted to $359,837.20. They were paid thereon $324,400.71, leaving an unpaid balance of $35,436.49.

The defendant objects to the payment of most of this balance, and claims that in the construction of the sewer the claimants made certain variations from the specifications of the contract, whereby the cost to them and the value to the defendant was lessened at the rate of $8.94 a lineal foot. The whole amount of deduction claimed on this account is $28,468.53. This defense will be considered in connection with the next stated item of the claimants’ demand.

Under instructions of the defendant’s .engineers, claimants built the arch of the sewer V¿ feet in height, laid the foundation timbers and planking 41 feet in length, and built the abutment 'walls 5¿- feet thick; whereas the contract required 1 foot less for the height .of the arch, 4 feet less for the length of the foundation timbers and planking, and, as they allege, 2 feet less for the thickness of the abutment walls. This enlargement of the sewer cost the claimants $56,712.59.

Before examining these two items of the claim and the defenses thereto, it is proper to observe that the contract is very imperfectly drawn. It provides that the arch shall have a 60-foot span and the abutment walls shall be 5J feet thick, but the foundation timbers and planking shall be 37 feet long.' It provides that the abutment walls shall be built upon the timbers aud planking, but the latter shall extend only from the inside of one wall to the outside of the other. It provides that the rise of the arch shall be 6 feet 6 inches, and shall correspond in size to arch already built, which had a rise of 7 feet 10 inches. It .provides that the skew-back course shall be of the same thickness as the abutment walls, to wit, 3 feet 6 inches, although it elsewhere provides that the abutment walls shall be 5 feet 6 inches in thickness. Some things that should appear in the specifications are entirely omitted, and some things that do appear are stated in very doubtful language. Apparently the scrivener wrote the contract without fully knowing what the parties had agreed upon, and the parties signed it without fully knowing what the scrivener had written.

Fortunately, there is one clause in the contract which, with the action of the parties thereunder, enables us to ascertain their intention.

The sewer had already been partly constructed by other parties. The claimants were to begin where they left off. The construction and size of the new work by the terms of the contract were to be similar to the old. The abutment and skew-back walls of the sample work here referred to and called for were 5 feet 6 inches in thickness; the sleepers were 41 feet in length, extending from outside to outside of the abutment walls, and the skew-back course was built up of rubble masonry. The defendant furnished a working plan for the claimants to follow, which, so far as it went, corresponds to the work of the sample. The claimants, without objection or other requirements of the defendant, constructed the sewer substantially in accordance with this working plan and the sample work. They did what apparently they supposed the contract required them to do, and thus furnished us with their understanding and construction of it.

Thus the claimants proceeded with their work until about 680 feet had been completed. It was done under the supervision of Mr. Cluss, the District engineer, and his assistants. No complaint was made on either side. The contractors seemed content to make the enlargement and the defendant content with the quality of the work. Both, it is believed, substantially followed the sample and the working plan, but in some respects differed from the provisions of the contract.

Then came the act of June 20, 1874, by which the Board of Public Works was abolished and Commissioners appointed. Lieutenant Hoxie, of the Army, was detailed as District engineer. His first business was to examine the Tiber Creek sewer. It does not appear that he ever examined the sample work. He saw, however, that the work was not being done as well as the contract required. He particularly objected to the skew-back course. He required, as did the contract, the use of dimension stone. He was informed that the procurement of such stone would cause delay. He finally directed them to construct it of a certain kind of brick-work. At the same time he notified the person in eharge, supposed to be one of the claimants, that he should make a deduction in price, but named no amount. He reported his action to the commissioners, who made no objection. Thereafter the work proceeded to completion under Lieutenant Hoxie’s direction.

When the engineer caihe to make estimates for partial payments he deducted $8.94 a lineal foot for this change in the work. The claimants protested, and the dispute remains unsettled.

Here, then, are two important variations from the written contract, one in the size of the sewer and the other in the quality of the work. The one to the disadvantage of the claimants and the other to the defendant. Both were according to the working plan, so far as it went, and according to the sample. In this way 680 feet were completed to the apparent satisfac-faction of both parties. The new engineer did not forbid the work to. proceed, but required it to proceed on a plan of his own, to which the claimants, conformed. To be sure, he said he should make a deduction in the price, but to this the claimants did not assent. It was not made as a condition of allowing them to proceed, but to save time and facilitate the work. It was for the defendant’s convenience, to avoid .delay. We think the work was done, substantially, in conformity to the sample work and the working, plan, and therefore reject the claimants’ demand for $56,712.59, on the one hand, and the defendant’s deduction of $28,468.53 on the other.

By direction of the defendant’s engineer the claimants constructed four lateral sewers, whose united length was 353 feet, and whose united cost was $5,525.19. (Finding IX.) The defendant claims that the claimants were bound by their contract to make these sewers at their own expense. The contract provides that “ all the connections for lateral sewers must be made when and as directed by the engineer.” This certainly requires the claimants to leave proper openings in the Tiber Creek sewer and join the lateral sewers thereto, but not to construct 373 feet of sewerage in order to bring the several parts within joining proximity. It was in contemplation of the original contract to build the Tiber Creek sewer along and near to the outlets of these lateral sewers. Its location was subsequently changed by agreement of the parties. It is said that this change was so favorable to the claimants that they could well afford to construct the extensions under the contract price. That may be so, but as the parties did not so agree the court cannot supply the omission by astrained and arbitrary construction. The •defendant should pay the claimants the reasonable cost, which is $5,525.19.

The claim of $40.25 (Finding IX) should not be allowed because it was required by the contract.

The Tiber Creek sewer discharges into the James Creek Canal with a fall of 7 or 8 feet. > The ground at this point is composed of sand and soft earth. To protect it against the flow and fall of the sewer drainage, the claimants built, by •direction of the engineer, extra foundations for the abutments and a perpendicular apron wall of masonry at right angles to the sewer and underneath the terminal sleepers. The one cost $669.50 and the other $530.72. This work was absolutely necessary to prevent the sewer from being undermined. (Finding X.) Which party shall pay for it? The grade of the sewer was given when the contract was made. By the terms of the contract the claimants were required “in a good, firm, and substantial manner * * to build and complete * * * the sewer.” The $113 a foot was to be paid—

“As full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to be done under this agreement, and in all respects complete the same?

In the judgment of the court this work was necessary for the completion of the sewer “ in a good, firm, and substantial manner.” The claimants were properly required to make it at their own cost.

The claimants also constructed, at defendant’s request (Finding XI), a cut-stone fagade at the terminus of the sewer at an expense of $1,852.69. It was merely ornamental, not required by the contract, and the defendant should pay for it.

The claimants present two bills, the one for building a brick invert, and the other for tearing down and rebuilding certain abutments. This work was done to correct a mistake in the grade, not discovered until after considerable progress had been made in the work. The party in fault must bear the loss. It appears (Finding XII) that it was a mistake of the claimants. A portion of this expense, amounting to $57.50, was occasioned by a change in plan by defendant’s engineer, and this amount should be paid by the defendant.

The claimants built a dam at Virginia avenue to divert the drainage of the sewer into the old Washington Canal at that point, to enable them the better to work at and complete the portion below. It appears to have been done for their own convenience. For this reason they must bear the expense of it. (Finding XIII.)

The claim of $45.87 for cleaning Maryland avenue sewer was for work done at the instance and for the benefit of the defendant, and was extra to the contract. It should be allowed.

The claim for the®cost of manholes (Finding XV) must be rejected. It is not extra work. The claimants were required by their contract “to completegthe sewer in a good, firm, and substantial manner.” Without manholes it would be neither good nor complete.

The claimants present a bill of $6,147.41 for extra expense in constructing the sewer under the track of the Baltimore and Potomac Bailroad.

The contract contains these words :

“ It is further agreed that all loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the'same, or from the action of the elements, or from incumbrances or injuries to individuals, property, or otherwise on the line of the work or adjacent thereto, shall be sustained by the said contractor.”

The claimants thus covenanted to sustain all loss arising out of injuries to property, and the decree above referred to settles the question that the disturbance of the Baltimore and Potomac Bailroad line was an injury to the company’s rights of property. It is very probable that neither of the parties at the time of the contract took that view of the railroad’s right, but that fact cannot affect the construction of the contract.

The claim of $25 for getting out stone from the banks of the canal (Finding XVIII) cannot be allowed, because it was not done at the request nor for the benefit of the defendant.

The claimant furnished, at the request and use of the defendant (Finding XVII), two sticks of timber valued at $18, which does not appear to have be'en required by the terms of the contract. This amount should be allowed.

The defendant charges the claimants with a quantity of stone estimated at 7,176 perches. It appears by the correspondence (Finding XVIII) that the claimants proposed to purchase the stone at $1 a perch, and that the defendant accepted the offer with a slight modification. The claimants appear to have been satisfied with the modification, for they soon began to get out the stone and actually removed about 100 perches. The purchase was apparently made in the belief and expectation of both parties, though not expressed in the correspondence, that the stone could be used in the construction of the sewer. It does not appear that claimants had any other use for them. After a few had been dug out from the canal banks and some of them placed in the walls, the defendant discovered that they were not fit for that work and forbade their use. The claimants took no more. The stones dug out of the bank and not put in the sewer were afterwards used by the defendant. The remainder were left in the banks of the canal, which was under the control of the defendant. What became of them does not appear.

The court holds that the claimant should only be required to pay for the stone actually taken, which amounted to $100.

The claimants purchased of the defendant a steam pump for $1,000, a quantity of sewer-pipe worth $366.50, and some gravel worth $12.50j in all, $1,379. As no provision was otherwise made for the payment, it is to be presumed that it was intended to be credited upon the contract. For this reason the amount should be deducted from the claim.

The defendant claims $12,711 damages for the failure on the part of the claimants to fill up the old canal. The clause of the contract relied upon to sustain this item of the counterclaim is as follows:

“The contractors will be required to procure at their expense all the filling required to close the canal at the sides of the above-named sewer for the width of Third street, and from a point of forty (10) feet north of the north part of the sewer to the south end thereof, and to the depth of two (2) feet above the crown of the masonry as shaded in the plan.”

By the original contract the sewer was to have been built in the bed of the old canal. In that case the claimants were required to fill up the narrow spaces between the walls of the sewer and the banks of the canal. When the location of the sewer was changed this provision had no application to the canal, but became applicable to the sides of the sewer as elsewhere located. There is no complaint that this filling was not properly done. This item of the counter-claim cannot be allowed.

By these conclusions of the court the claimants are entitled to recover upon their several claims the sum of $43,(¡35.74.

The defendant is-entitled to recover upon the several counterclaims the sum of $1,479. Upon the whole case the claimants are entitled to judgment in the sum of $42,456.74 due and payable January 18,1876.

Drake, Oh. J., and Weldon, J., dissented.  