Daly v. Busk Tunnel Ry. Co.

Citations

• 129 F. 513
• 64 C.C.A. 87
• 1904 U.S. App. LEXIS 4062

Syllabus

<p>L Contract fob Making Tunnel — Construction—Bight to Change Dimensions.</p> <p>A contract for the construction of a railway tunnel through a mountain nearly two miles in length fixed the dimensions of the tunnel and the price per lineal foot to be paid the contractor for excavating the same. It contained the further provision: “(6) It is understood and agreed that the railway company shall have the right to make such changes in the amount, dimensions or character of the work to be done, as in the opinion of the chief engineer the interests of said work or of the company may require; * * *. Any increase in the amount of work to be done, that may be caused by such changes, shall be paid for at the same rate as similar work is herein contracted to be paid for.” Printed specifications attached to the contract contained a provision that “the right is reserved to vary the standard dimensions of the tunnel should the engineer deem it advisable, but the end area shall not thereby be increased.” Held, that the latter provision was not intended to prohibit the company absolutely from enlarging the end area or cross-section of the tunnel, but, when construed in connection with the provision of the contract proper, meant that it should not be so enlarged as to require the removal of more material for the contract price per lineal foot, and that if so enlarged the contractor should be entitled to extra pay; that such changes, therefore, were not a variation from the contract which would release the surety on the contractor’s bond from liability, though made without his knowledge or consent.</p> <p>2. Same — Conflicting Provisions.</p> <p>In case of a conflict between the provisions of a contract for the construction of a tunnel and those of printed specifications attached thereto which were prepared previously for general use in connection with such contracts and not with reference to that particular contract, those of the contract itself must control.</p> <p>3. Settlement —