
    GRANT v. CITY OF DETROIT.
    
    Paving Contract — Construction—Car Tracks.
    A contract providing for paving a street “40 feet wide, less car tracks, 15 feet,” requires the contractor, as a matter of law, to pave the space under a flange on the outside of the rails.
    Error to Wayne; Frazer, J.
    Submitted November 23, 1898.
    Decided December 13, 1898.
    
      Assumpsit by James Grant against the city of Detroit for work and labor. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff entered into two contracts with defendant to pave certain streets with cedar blocks on concrete. The streets were traversed by double street-car tracks. The contract did not include these tracks or the space between them. This space had been previously paved. Each contract involving the same question, we will refer to one only. The contract provided for grading and paving the street “with cedar blocks on concrete foundation, 40 feet wide, less' car tracks, 15 feet,” for $5,080.22. The rails had flanges at .the top and bottom, leaving a space on the outside of the rail, hollowed out about 5 inches in depth, and extending about If inches towards the body of the rail. The engineer testified, under objection and exception, that, in making his estimate, he did not “include anything for tamping, for filling in under the outer flange of the railway flange,” but that he took the extreme width from the top of the rails. When plaintiff commenced work, he insisted that his contract did not include this space; that it was not included in the estimate made by the engineer; and that Mr. Guthard, one of the board of public works, who supervised the work, told him that the space must be filled, and, if it was not provided for, the engineer would give him an estimate for it. He did the work, and the city refused payment, whereupon plaintiff instituted this suit, and recovered a verdict of $175.
    
      Charles Flowers and Arthur Webster, for appellant.
    
      Louis C. Wurzer, for appellee.
    
      
       Rehearing denied May 23, 1899.
    
   Grant, C. J.

(after stating the facts). We are of the opinion that there is no doubt about the construction to be placed upon this contract. It seems unreasonable to suppose that the parties were making a contract leaving this small space unfilled, or that either could have so understood it. There is nothing in the contract, specifications, or estimate to indicate the exclusion of this space. The paving could not have been complete without it. Plaintiff saw the street before entering into the contract, and accepted the estimates of the engineer. The estimates and measurements were binding, in the absence of fraud or mutual mistake. There is no claim of the former and no proof of the latter. It follows that the court was in error in submitting the construction of this contract to the jury. It was a question for the court, and a verdict should have been directed for the defendant.

Judgment reversed, and no new trial ordered.

The other Justices concurred.  