
    (58 South. 588.)
    No. 18,861.
    SOUTHERN BITULITHIC CO. v. ALGIERS RY. & LIGHTING CO.
    (April 22, 1912.
    Rehearing Denied May 20, 1912.)
    
      (Syllabus by Editorial Staff.)
    
    1. STEEET RAILROADS (§ 38*) — MAINTENANCE. —Street Paving — Liability fob Costs.
    Under a franchise obligation, requiring a street railway company to pay the cost of paving between the rails of each track and for one foot on the outside thereof, the company is not entitled to a deduction from the cost, computed by the square yard of paving, on account of the space occupied by the rails or by the cross-ties, it appearing that the cost of paving the company’s part of the street was rendered more expensive than the remainder of the street, owing to the constant passing of cars and to the presence of the rails and cross-ties, and specially since it appears that, according to usage, such deductions, are not made.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. 38.*],
    2. Customs and Usages (§ 15*) — Application to Contracts.
    Usage enters into every contract and may be shown for the purpose not only of elucidating the contract, but also completing it.
    [Ed. Note. — For other cases, see Customs, and Usages, Cent.Dig. §§ 30-33; Dee.Dig. § 15.*]
    3. Street Railroads (§ 38*) — Maintenance. —Street Paving — Liability for Cost.
    While, under a provision in a street railroad franchise, providing that when any street shall be paved or repaved the company must pay the cost of paving or repaving between the rails of its tracks and for one foot on the outside of each rail, the company is not primarily liable for a more expensive kind of paving covered by such space than that ordered for the entire street, it is estopped to deny responsibility for the cost of such paving or repaving, whére it permits the work to be done without giving notice to the city, that it will not pay the excessive cost thereof.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. § 38.*];
    Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.
    Action by the Southern Bitulithic Company against the Algiers Railway & Lighting Company. Judgment for plaintiff, and. defendant appeals.
    Affirmed.
    
      Carroll, Henderson & Carroll, for appellant. J. C. Henifiques, for appellee.
   PROVO STY, J.

The present suit is to recover the cost of the paving of that part of -Teche street between the rails of the railroad of the defendant company and extending one foot on each side. It is founded upon the following clause of the contract by which the defendant company obtained its franchise:

“Should any paved or unpaved street, occupied by a track or tracks, be ordered paved or repaved, the purchaser shall pay the cost of paving or repaving between the rails of each track, and for one foot on the outside of each rail.”

Under the city charter, the abutting property owners have the right to choose the kind of pavement to be used upon the street, if they are to pay any part of the cost. In the present instance they chose bitulithic, and, accordingly, that part of the pavement on which they were to pay a part of the cost was so laid. But the part to be paid for by the defendant was laid in granite blocks. These two kinds of pavements require the same kind of foundation, namely, a six-inch layer of concrete.

Plaintiff was the contractor who did the work. Under the contract, that part of the pavement to be paid for by defendant was to be measured by the square yard, and to be paid for at the' rate of $3.95 per yard. The other part of the pavement was to be paid for on the basis of $6.60 per cubic yard of concrete foundation, and $1.95 per square yard of bitulithic surfacing. The difference in the cost of using granite blocks instead of bitulithic on that part of the street to be paid for by defendant was $2,951.13.

-Defendant contends that, under the above-quoted clause of the contract, there was no obligation on its part to pay for paving unless the entire street was ordered to be paved; and that, when this was done, theykind of pavement chosen was thus chosen for the entire street; and that it would be a stretching of said clause to so interpret it as to authorize the city to require defendant to pay for a more expensive kind of pavement than that ordered for the street.

Defendant claims a further reduction for the space occupied by the rails, and measures this space by the width of the head of the rails, according to which the space to be deducted would be one-tenth of the whole. And defendant claims a further reduction for the space occupied by the cross-ties, which, being embedded in the concrete foundation, economize that many cubic yards of concrete.

In the latter two claims we find no merit. The work of laying the foundation in that part of the street occupied by defendants roadbed was very much more difficult and expensive than the rest of the street, owing to the constant passing of cars, and to the presence of the rails and cross-ties which operated as so many obstructions, and, in general, owing to the irregularity of the surface to be paved. Because of this, a different mode of measurement had to be adopted -for that part of the work. Nothing is said in the contract about any deduction having to be made on account of the rails in computing the yardage; but we think that by a fair interpretation of the contract such deduction should not be made, as the evidence shows that the presence of the rails adds to the expense of the work very much more than it lessens it. Moreover, the testimony abundantly shows th'at the usage is not to make such deduction. Usage enters into every contract, and is properly admissible in evidence for the purpose not only of elucidating the contract, but also of completing it. C. C. arts. 1903, 1953; Marcadé, Com. on articles 1135 and 1159, C. N. In Kernion v. Hills, 1 La. Ann. 419, proof of usage wás admitted as supplementary to a statute.

How far the same argument as to tlie greater difficulty and expense of work owing to the passing of cars might apply to the work of surfacing the street we do not know; but we are clear that there is no answer to the contention that the defendant cannot be made to pay, under the above-transcribed clause of the contract, for a more expensive kind of pavement than that ordered for the entire street.

However, the defendant company knew that this work was being done; indeed, had its inspectors on it all the time. If the defendant company intended to refuse to pay for this more expensive kind of pavement, but intended to insist upon the other kind, it should have given formal notice to that effect to the city authorities before the work was done. This it did not do, and, under familiar principles, is estopped now from so doing.

Judgment affirmed.  