
    KENEFICK-HOFFMAN COMPANY v. RALEIGH, CHARLOTTE AND SOUTHERN RAILWAY COMPANY.
    (Filed 15 March, 1916.)
    1. Appeal and Error — Findings —Contracts — Railroads — Judgments —Evidence.
    In this action to recover of a railroad company upon a contract to construct defendant’s road, by agreement the trial judge found the facts, and, as to an item claimed for “overhaul,” that the contract was ambiguous, disallowed the plaintiff’s claim upon evidence tending to show that both the plaintiff and defendant by their acts and conduct between themselves and the subcontractors assumed that no such charges were contemplated, and the evidence is held sufficient to sustain the judgment in defendant’s favor.
    
      2. Same — Excavations.
    In this action to recover upon contract for constructing defendant railroad company’s road, the question was presented as a matter of fact, to be found by the judge under the agreement of the parties, whether the measurement should be made by the fills or excavations, and the court’s finding that from the character of the soil they could be made from the fills was sustained by the evidence.
    8. Same — Extras.
    Plaintiff offered to construct defendant’s railroad at a certain price per cubic foot on a 1 per cent grade, if allowed to manipulate, which was rejected, and the contract sued on was made on a greater maximum grade as per profile furnished by defendant at a less price per cubic foot, with the right of defendant to manipulate the grade, and the grade was afterwards made to conform to the 1 per cent grade. The court found that the defendant was entitled to charge for extra work. Held, the evidence afforded by the profile map, and that defendant’s engineer told plaintiff to await the completion of the work to ascertain the extras, letters, etc., was sufficient to sustain the judge’s finding and the judgment in plaintiff’s favor.
    4. Contracts — Extras—-Railroads—Subcontractors—Releases—Actions.
    In this action upon contract for construction of a railroad it appears that the subcontractors executed releases for the protection of the railroad, the defendant, and the charges for extra work were to be taken from such amount, if any, as the defendant may be due plaintiff. Held, the defendants, having accepted the releases upon the conditions named, cannot maintain the position that the subcontractors should have been paid as a prerequisite to the plaintiff’s action.
    5. Contracts — Subcontractors—Railroads—Extras—Evidence.
    It appeared that the president of defendant railroad company, in an action on contract to build its road, agreed with the plaintiff that, in addition to releases executed by the subcontractors of the plaintiff, the plaintiff should give a bond of $40,000 to protect the defendant from claims of subcontractors, provided for under a certain clause of the contract. Held, the conclusion of the trial judge, who by agreement found the facts, that the defendant was not entitled to deduct amounts due subcontractors, was sustained by the evidence, and the judgment is sustained on appeal.
    Appeal by both, parties from Shaw, J., at Special June Term, 1914. of Staetly.
    
      Gamier & Gansler and James II. Pou for plaintiff.
    
    
      W. B. Rodman and Tillett & Guthrie for defendants.
    
   Clark, C. J.

This action is brought for a balance of $403,405.17, with interest from 26 July, 1913, alleged to be due the plaintiffs for the construction of the defendants’ railroad between Mount G-ilead and Charlotte. At May Term, 1914, of StaNly, by consent of parties, a special term for said county was asked of tbe Governor, wbo was also requested to assign Shaw, J., to bold tbe same, witb an agreement to waive a jury trial, tbe judge in trying said cause to sit botb as judge and jury. Tbe Governor ordered said special term and assigned Judge Shaw to bold tbe same.

Tbe cause was accordingly tried by bis Honor acting as botb judge and jury. Tbe evidence was submitted in full, and upon tbe facts as found by bim be entered judgment in favor of tbe plaintiff and against tbe defendants -for tbe sum of $64,550.66, witb interest from 9 September, 1913.

Tbe printed record covers 811 pages and shows on every page tbe earnestness and ability witb wbicb counsel on botb sides presented tbeir contentions and tbe marked care and ability witb wbicb tbe learned and careful judge considered these contentions and arrived at bis conclusions. Indeed, tbe care witb wbicb tbe judge has considered tbe cause has very much diminished tbe number of points requiring our consideration, and greatly lightened our labors as to these.

Tbe plaintiffs’ appeal presents but one exception, and that is that tbe judge disallowed tbeir claim of $45,000 for “overhaul.” On this proposition tbe court found that there was an ambiguity or contradiction in tbe contract, but that at tbe time tbe plaintiffs went over tbe ’proposed line of road, prior to submitting tbeir first bid, they were informed by Mr. J. M. Clark, one of tbe defendants’ engineers then at work on said road, that it was to be a “no overhaul” contract, and that from tbe execution of tbe contract up to tbe conclusion of tbe work tbe defendants construed tbe contract as a “no overhaul” contract; that in making all tbe monthly estimates and final estimate nothing was allowed plaintiffs for overhaul; that tbe plaintiffs a short time after tbe execution of tbe contract discovered this ambiguity in tbe contract, and in subletting tbe work informed tbe subcontractors that tbeir contract witb defendants was a “no overhaul” contract, and made all tbeir contracts witb them on that basis; that tbe plaintiffs subsequently made this statement to all tbeir subcontractors; that plaintiffs accepted tbe monthly statements furnished by defendants, wbicb contained no allowance for overhaul, till some time in tbe first part of 1913, without protesting against tbe omission of such allowance, though if tbe plaintiffs bad been entitled to it, such allowance should have been credited in some of tbe monthly estimates prior to that time. Tbe court further found as a fact that it was not intended by tbe parties that plaintiffs should be paid for overhaul as a separate unit '(which is customary when such charge is provided for in tbe contract), and that tbe overhaul, if any, was included in tbe price of “46 cents per cubic yard for excavation and all necessary haul,” and that there was no haul limit in tbe contract except that plaintiffs were not required to haul across impassable barriers (such, as trestles, bridges, and viaducts) ; and the court further found that in the construction of this roadbed defendants did not require plaintiffs to haul across such barriers, and that both parties during the first five or six months of the contract treated the same as a “no haul limit” contract.

There was evidence that fully justified these findings of fact, and upon such findings of fact the court properly held, as a matter of law, that the defendants were not indebted to the plaintiffs in any amount by reason of their claim for overhaul; and we affirm the judgment on the plaintiffs’ appeal.

The defendants’ appeal presents only four exceptions:

1. The defendants contend that under the contract the measurement could be made only by measuring the excavations, unless there was a finding that this method was impracticable, and that then it could be done by measuring the fills.

The only question presented by this exception is as to the method of measurement, and upon the evidence the court was justified in finding that, taking into consideration the character of the soil and the inter-mixture of rock, there was no difference in the quantity, whether ascertained by measuring the excavation or the fills.

2. The next item is on account of changes in the roadbed after the contract was made, and involves two charges, one for a deduction of $7,000 and one for $27,000. The defendants, as appears from the record, asked for bids on a 1 per cent grade. The plaintiffs made a bid of 51 Yz cents per cubic yard with 5 per cent off if allowed to manipulate, that is, to modify the line as laid out with a view of making lighter cuts and lower fills. This was rejected. A profile was then submitted, showing a maximum grade of l%o Per cent, reserving to the defendants the right to manipulate the grade. The plaintiffs thereupon bid 46 cents per cubic yard for the work. This was accepted. Afterwards the grade was changed to conform practically to the 1 per cent grade, and the two items of $’7,000 and $27,000 are for alleged extra work in making these changes. The defendants contend that there could be no recovery for extra work because the contract provided for a supplemental contract, and there was no such contract. But the court found upon the evidence, especially upon the profile of 26 November and the letters following, that the chief engineer of the defendants told the plaintiffs to wait until the work was completed to ascertain the extra work. The evidence justified such finding, and as a matter of law the contractors were entitled to rely upon this instruction of the defendants’ chief engineer.

3. A part of the $27,000 above stated, amounting to $18,000, is due to subcontractors. The court finds as a fact from the evidence in this case tbat tbe subcontractors “executed releases to the plaintiffs and defendants for all claims which they might have for work performed by them, and further found as a fact that these releases were executed by said contractors in order to comply with section 19 of the general contract requiring the contractor to furnish releases from subcontractors before receiving final payment for work done under the general contract, and that these releases were made under an arrangement between the defendants, the contractors and the subcontractors, by which it was agreed that the releases so signed by said subcontractors could only protect the railroad in making payment to the contractors, and if upon a final settlement it should appear that the subcontractors were entitled to receive additional compensation for extra work done by them on account of changes made in the alignment or grade of the railroad, that then the subcontractors should be entitled to receive from the contractors their proportionate part of any amounts paid the contractors by the railroad on account thereof, notwithstanding they had executed such releases.”

4. The last contention of the defendants is that under section 31 of the contract the plaintiffs cannot recover until all claims and liens for. labor, material, and actions for damages on account of alleged negligence, all growing out of the construction of the road by plaintiffs and existing at the institution of this action, had been discharged by the defendants, and that they should be allowed to deduct from any sum found due the plaintiffs any sum which the defendants may be called upon to pay on account of such matters.

The court found as a fact that it was agreed between the plaintiffs and the president of -the road that in addition • to the releases by the subcontractors as above stated, the plaintiffs should give a bond of $40,000 to protect the defendants against any claims coming under said section 31, and thereupon the plaintiffs would not be required to comply further with said section 31 of the contract.

This action is for a large amount, but all the points in controversy have been admirably presented by the diligence of counsel both on the trial below and in this Court. After full and careful consideration of all the exceptions, we find that the findings of fact by the'learned judge below are not only sustained by some evidence, but by the preponderance of evidence, and upon the facts found by him, by consent of parties in lieu of a jury trial, his conclusions of law are correct.

In the defendants’ appeal, as in the appeal by the plaintiffs, we find

No error.  