
    NO. 7583
    SUTHERLIN CONSTRUCTION CO VS CITY OF GRETNA.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By his Honor John 8t. Paul.

z IThis is an action by a contractor for a balones allegad to be dne^fe* for constructing its waterworks system.

J Phe petition alleges, the answer admits, and the evidence shows, that the contract was let for the lump sum of $46830. with a provision that any surplus or shortage of material furnished should be adjusted at certain prices fired in the contract. Phare was an agreed deduction of $2840, for a pump not furnished, and the contractor admits a# deduction of $114.70 for some 12 inch pipe also not furnished; thus . 8 leaving a net contract price of §4375.20.

In the same way it is admitted, and proved, that there was extra work done amounting to §4423.51; thus making the total gross amount due the contractor §48298.81.

It is also admitted, and proved, that payments were made to the contractor amounting to §47966.48.

So that if we elimínatelesrtain deductions which the defendant claims there is still due the contractor a balance of §332.33 above other clAims which he makes herein; all of whioh will more clearly appear by reference to Item A of the memorandum annexed hereto.

II.

As the defendant olalms that the payments wiped out the account in full, and as the deductions to whioh we have refsread* amount to only §193.86 (as per Item B of the memprandnm annexed) there is a difference of §138.47 between the defendant and ourselves.

But we have not attempted to analyse the details of that difference, as we are satisfied that defendant has followed an erroneous method in its accounting,

Ehd contract very dearly provides for a lump sum for the work, subjaot to additions or deductions at oortaln fixed prioea. But the oity engineer prooeeded in his estimates as If the contract provided for "unit prioea»"

Of oouraa If the unit prioes (whioh may hare served aa a hasis for reaohing the lump sum) were exactly the sane as the prides fixed * hy the oontraot for additions and deductions, then the result wpuld neoesaarily he the same; hnt a oomparision of the prices fixed in the oontraot with the unit prices used hy the engineer, shows that the prices were not the same (See first 9 items of Defendant's Exhibit B, Document £8, and compare with same items on page 2 of original oontraot, Dooument 19). And as the engineer used higher prloet than allowed hy the oontraot, of oourae his deductions would always he greater; whioh aoeounts for the difference aforesaid.

III.

She deductions whioh the defendant olalms the right to make, amounting to $193.86 as detailed in Item B. of the memorandum annexed, are arrived at hy snhtracting^from the total length of pipe measured "overall/ ^ the apaoe¿oeoupied hy erosaes, tees and valves; on the theory that these spaces are not oooupled hy pipe, hut hy these special eastings, which hawe been paid for separately.

She uhoontradioted evidence of a number of reputable and this disinterested engineers, familiar with class of work, shows that it is the universal custom to measure pipe laid in trenches "overall", without deduotion for spaoes occupied hy tees, crosses and valves; that the wotk at and around the special oastings is greater and more oostly than the laying of straight pipe; that the presence of these speoials in a line la an added expense and not a saving to the oontraotor#;#feiS# that all contractors make their bids on the basis of overall measurements; and the evidence is that the bid in this case was made with regard to that otatom.

under the ciroumstances the deductions cannot be allowed; sinoe well known customs enter into all contracts and form part thereof unless clearly meant to be excluded. C. C. 1903, 1964, 1966.

IT.

The contractor claims additionally the sum of $514.19 as detailed in Item 0 of the memorandum annexed.

Of this amount the sum of $240.24 is for 364 feat of 6 inch pipe at 66 cents for foot. This elaim grows of th- extra work fof ’•/kich plaintiff was allowed payment. On defendant's Efchibit E, Document, 28, Sheet 1, it appears that by overall measurements plaintiff laid 3733. 8 feet of 6 inoh pipe for this extra work;; but the engineer allowed him pay for only 3369.8 feet, deducting 364 feet for the 3paoaa occupied by specials.

Eortthe reasons whioh we have Just given (in the seotion whioh preoedes this) we think the deductions should not have been made, and that plaintiff is also entitled to recover this amount viz $240.24

Plaintiff olaims also the sum of $129.75, on what is oalled Force Accounts Hos 1 and 2 ($26.75 plus $103.-)

The claim is for §##§## alleged extra work. To support it we hare only the testimony of plaintiff's superintendent who says that the work for whioh the claim is mads was not covered by the contract and should be paid for as extra. Opposed to this is the testimony of the City engineer who holds that the work was within the contract and was not extra.

this It is therefore simply a matter of opinion whether #f##work was, or was not, covered by the contract.

ft The witness seem to differ honestly, and we are unable to determine whioh one of them is right. But as the plaintiff must make the claim oertain and has failed to do so, we are bound to rejeot it.

Plaintiff also olaims that the defendant kept oertain lengths of left-over pipe, or Junk, as detailed in Item I) of the annexed memorandum, for whioh pliintiff should be paid.

But from a oareful consideration of the evidence as a whole and of the different exhibits herein filed, we are of opinion that all these left over pieces of pipe were included in and formed part of the overall measurements for which plaintiff contended and whioh we have allowed. This claim must therefore be disallowed.

V.

In re convention defendant claims $75 which, it paid to a party ■who had been ohosen to act as arbitrator J.n this matter whan at one time it waa proposed to submit thia controveray to that method of settlement.

The evidence shows that plaintiff's superintendent agreed to such a submission, but that he had no authority to do so, and his principal did not approve of his act. It further shows that the arbitrator’s fee had been fixed at $150, of which each party was to oay half; and that whan plaintiff refused to approve the submission, the defendant had already submitted to the arbitrator its contentions and proofs; wherefore defendant thought that the arbitrator ifeító was entitled ex aequo at bono to some compensation, and so paid him its portion of the fee which he was to have received.

As defendant paid only its own portion of the agreed fee, which it would have had to pay even if wholly discharged by the award, (and perhaps paid even that without any strict legal obligation to do so under the circumstances!, we are at a loss to understand why plaintiff must reimburse it. But however that may be, the fact that defendant's superintendent was not authorized to make the submission ends the matter, as there was no reason to presume that he had such authority, whioh must always be express and special. C. C. 2997, 3101.

The judgment appealed from is therefore reversed, and it is now ordered that there he judgment in favor of plaintiff the Sutherlin Construction Co, and against the defendant the City of Gretna, for the full sum of Five hundred and Seventy-two 57/100 Dollars (#572.57) with legal interest from June 15th 1916 until paid and the costs of both courts; and it is further ordered that the reoonventional demand of the defendant be rejected at its cost.  