Delaware, Lackawanna & Western Railroad v. Monroe County Water Power & Supply Co.

Citations

• 221 Pa. 387
• 70 A. 797
• 1908 Pa. LEXIS 494

Syllabus

<p>Contract — Performance—Construction of wall and fill — Railroad— Power company.</p> <p>A water power company being about to build a dam across a stream at a gorge, and being threatened with an injunction by a railroad company whose tracks were laid along the side of the gorge, entered into an agreement with the railroad company by which it undertook to build a retaining wall, and to fill in back of the wall as a protection to the embankment of the railroad company in accordance with certain plans and specifications required by the railroad. The power company built the wall, as required, but instead of making the fill itself, entered into a new contract with the railroad company by which the latter company agreed to make the fill. For this work the power company was to pay the railroad company a stated charge per cubic yard, but not for more than a specified number of yards. The work of filling by the railroad company was to be done in accordance with the specifications contained in the original agreement. In doing the work the railroad company departed from the specifications in not tamping the fill, and in not placing the fill as high up or against the retaining wall as the specifications required, but did the work to the satisfaction of the inspector and accepted it as complete performance of the undertaking of the power company to protect the right of way and embankment of the railroad company. After the whole work was finished the railroad company accepted the wall and the fill as satisfactory. Held, that the railroad company was entitled to recover from the power company the cost of the fill up to the maximum number of cubic yards specified in the supplemental agreement.</p> <p>' Brown, Mestrezat and Potter, JJ., dissent.</p>