Mayor of Baltimore v. Clark

Thomas, J., delivered the opinion of the Oourt. In June, 1908, the appellee entered into a contract with-the Mayor and Oity Council of Baltimore to construct a-diversion server, according to certain plans and specifications, made a part thereof, and to furnish all labor and materials necessary for that purpose. The contract contained, among-others, the following provisions: “The Water Engineer shall have the power to make such changes in the plans or additions thereto as maybe found advisable during the progress of the work, and should such changes or additions involve the execution of a class of work not herein provided for, the Contractor shall perform the same as directed and shall be paid therefor an amount equal to its actual cost to him for labor and materials plus twelve and one-half per cent, for profit. The Contractor must ²⁹⁹ submit to the Water Board satisfactory vouchers for all labor and materials furnished by him in the execution of such work, which shall be classed as ‘Extra Work’ and must be authorized in writing by the Water Engineer.” “Payments for work shall be made as follows: On or about the last day of each calendar month, the Engineer in charge shall make an estimate of the value of the work done and material furnished to that date, and within thirty days thereafter there shall be paid to the Contractor ninety per cent, of such valuation, less previous payments.

Final payment of ten percent. of the contract price may he withheld for a period of thirty days after completion and acceptance of the work in writing by the Water .Board.” “The payment and acceptance of the amounts indicated by the Engineer in charge shall not he considered as binding upon either the Contractor or the Mayor and City Council of Baltimore should the Mayor and City Council of Baltimore have any doubt as to the accuracy and fairness of the estimate, in which event the Water Board may have a true and eoi-rect estimate made, upon which settlement shall be based, and which shall be final and conclusive.” “The Water Board shall act as agent for the Mayor and City Council of Baltimore in all dealings with the Contractor; and the work shall be done under the supervision of the Water Engineer as President of the Board. Whenever the word ‘Engineer’ is used herein, it shall be understood as referring to a duly authorized representative of the Water Board.” Ruder the head of specifications the contract contained the following provisions: “Diversion Sewer with vitrified brick invert and concrete walls and arch, shall be built as shown on the plans,” &c. “Excavated material will he classified for payment as ‘Earth,’ ‘Loose Rock’ and ‘Solid Rock.’ ‘Earth’ ³⁰⁰ shall include macadam stones, loam, sand, clay, ‘soft rotten rock/ gravel or other earthy material, including boulders of volume not greater than two cubic feet. ‘Loose Rock’ shall include seamy hard rock that may be economically loosened with pick or bar in pieces of no greater volume than two cubic feet, and also boulders that may be economically broken up for removal by mudcapping or otherwise without drilling. ‘Solid Rock’ shall include solid ledges or large boulders requiring to be drilled and blasted for removal.” “Excavated material will be paid for on ‘place measurement/ and prices shall include back fill and disposal of surplus material at points designated, &e. * * * Payments will be based on widths of trenches as follows: In Loose or In Earth. Solid Rock. For 69-in. sewer........97 in.. .not more than 109 in.

For 60-in. sewer........84 in... not more than 96 in. Fór 18-in. vitrified pipe.42 in................42 in. For 12-in. vitrified pipe.36 in................. 36 in. For bell mouth and drops......neat lines.

Material excavated outside of the above lines unless authorized in writing by the Water Engineer will not be paid for except where sheathing' is required, when the additional width necessary will be allowed. The depth of trenches in earth shall be to the grade established by the Engineer, in loose or solid rock, excavation may extend not more than six (6) inches below the established grade; whenever excavation extends below the' established grade the Contractor at his own expense shall refill up to the grade line with approved material, furnishing a solid foundation.” “Proper and sufficient sheathing and bracing shall be used where necessary and cradles or platforms shall be laid in the bottom of the trench should the Engineer so direct. Sheathing shall be withdrawn at the discretion of the Engineer. Sheathing left in place and ³⁰¹ timber in platforms or cradles will be paid for at the proposal prices per foot B. M.” Under the head of “Conditions of Agreement” the contract also provided: “It is agreed by and between the parties to this contract, that the Water Engineer shall determine the amount and quantity of the several kinds of work which are to be paid for under this contract, and shall determine all questions in relation to said work and the construction thereof, and decide every question which may arise relative to the execution of this contract on the part of the Contractor, and his estimate and decision shall be final and conclusive, unless modified, changed or disapproved by the said Water Board.” The contractor agreed to include in his estimate all the labor and all the material necessary to construct the sewer in a substantial and workmanlike manner according to the plans and specification: “The said estimates to include every item of cost in the construction and erection of the said diversion sewer, together with any additional expense which may accrue to said Contractor for any part of the work, consequent upon any delays or difficulties encountered of any character whatsoever, and the Contractor will not find the said Water Board liable for any expense over and above the prices as are hereinafter set forth; and the Contractor further agrees that no claim for extra work shall, under any circumstances, be allowed or considered, unless ordered as such, in writing, by the Water Engineer and approved by the Water Board.” “And the Contractor agrees to receive, and the Mayor and City Council to pay, as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the ■work to be done under this agreement, and in all re ³⁰² spects completing the same, the prices set forth below for each of the various classes or kinds'of work to be done or materials to be furnished, to be paid in the following manner, viz: Monthly payments equal to ninety (90) per cent, of the value of the work when completed as estimated, on or about the twentieth day of each month, by the Water Engineer or his appointed representative, and final payment of (10) ten per cent, reserved upon the expiration of thirty (30) days after all material and work shall have been furnished in conformity with the terms of this contract, and the Water Board shall have accepted the same, the said Water Board will pay to the said Contractor whatever money is due or payable to him for the completion and performance of said work, said prices as follows,” &c.

In this clause the City agreed to pay for excavating- earth 60 cents per cubic yard; for excavating loose rock $1.20 per cubic yard; for excavating solid rock $2.15 per cubic yard; for sheathing and other lumber left in the trench $40.00 per thousand; for the sixty-inch sewer in place $6.25 per lineal foot, and for the sixty-nine inch sewer in place $1.25 per lineal foot, and the contract contained the further provision: “And the Contractor agrees that all estimates shall . be made by the Water Engineer or his representative, and that payment will be made on the said estimates made by the said Water Engineer.” The appellee began the work under the contract in July, 1908; monthly estimates of the work done, &c., were made out by P. A. Beatty, the resident engineer, and the appellee was paid the amount of the estimates, less the ten per cent, retained by the 'City under the terms of the contract. In August, 1908, after receiving the first estimate, the appellee complained of the classification df the material excavated, and wrote Mr. Beatty asking for a reclassification. This letter was referred to Mr. Quick, the water engineer, who wrote the appellee that as he had receipted for the work done in ³⁰³ July it was too lata to ask for a reclassification of the excavation allowed in that estimate, but that he would be glad to ■consider any complaint of any subsequent classification, and in answer to a further request of the appellee for a reclassification of said material Mr. Quick wrote him that he had referred the matter to Mr. Sudler, engineer in charge, and requested him to meet the appellee and go over the matter with him. On October 8th, 1908, Mr. Quick wrote the appellee as follows: “Mess.

J. B. Clark & Co., “10 E. Lexington Street, City. “Gentlemen: “We have found it necessary to have additional concrete oiitside of the lines called for by the plans governing your contract. I understand that you have agreed to put in this concrete at $8.00 a cubic yard. Therefore, you are hereby authorized to place such extra concrete in the arch or sewer invert where directed either by myself, Mr. Sudler or Mr. Beatty, at eight dollars ($8) per cubic yard. “Please advise me in reply to the above by return mail if you will undertake this work as directed. “Yours truly, “(Signed) Alfred M. Quick, “Water Engineer.” 'To that letter the appellee replied as follows: “Baltimore, October 12, 1908. “Mr. Alfred M. Quick, “Water Engineer, “City Hall, City. “Dear Sir: “Your letter of October 8th with reference to extra ■concrete. The price of $8.00 per cubic yard for invert ■concrete is very satisfactory to its. “The cost of arch concrete will be greater on account of richer cement mixture and more difficult form work.

We would suggest that $9.00 per cubic yard ³⁰⁴ for arch, work would leave us fair profit and would be slightly lower than figured in our bid .for similar work. “(Signed) C. .B. Clark & Co.” In answer to the appellee’s letter of October 12th Mr.. Quick wrote him: “Gentlemen: “In reply to yours of the 12th instant, in which you say that $8.00 is a satisfactory price to you for the extra concrete for the invert, but suggest $9.00 for the-concrete in the arch of the sewer, I would say that we-agree to allow $9.00 the price you suggest; so therefore you will proceed with the extra concreting on the-basis of $8.00 per cubic yard for the concrete used in the invert and $9.00 a cubic yard for that used in the-arch. “Tours truly, “(Signed) Alfred M. Quick, “Water Engineer.” On December 10th, 1908, Mr. Beatty wrote the appellee* that in order1 to avoid the use of concrete outside of the section authorized by the plans he should bring up the bottom-of the trench to the grade of the bottom of the sewer with suitable material properly rammed and compacted, and giving him the following directions in order to avoid the use of' concrete on the sides of the trench: “Where the section has run wide in rock, you have the option of filling with concrete to the sides of the trench—for which no excess will be allowed except at those points and in such quantities as I shall authorize in writing—or of forming over such openings to the height of the upper line of brick invert (to which point the concrete invert is always brought in the first operation) in such a manner as to give the full outside lines of the sewer section. This forming will be of one-inch plank where the voids are small and' irregular and the points of rock afford frequent sup- ³⁰⁵ port. Of two-inch planks where the voids are large and much stiffness required to maintain line.

Before the concrete is placed, the voids shall he thoroughly-filled with rammed material suitable to make compact work. The inspector shall direct where the two-inch plank shall he used, and should a discussion arise, the engineer will inspect the point and decide upon the thickness of the forming necessary. The inspector will keep an accurate record of all material thus used for forming and you will be paid for such as must remain in the work. The intention being to avoid the claims for excess concrete at points not authorized by the engineer—and to use as little forming lumber as practicable in holding the concrete to the neat lines.” In reply to this letter of Mr. Beatty the appellee wrote him on December 15th that the method suggested by him for avoiding the use of concrete on the sides of the trench would delay the concrete work and would cost him more than the amount of timber involved would be worth, and asking him to suggest some other method that would compensate him.

On December 10th, 1908, the appellee wrote Mr. Quick enclosing a statement of accounts for extra concrete and other items, for which he asked payment in his Kovember estimate, and stating that the same had been taken up with the resident engineer who, because of his “lack of authority to handle same,” had referred the appellee to him. On December 11th the appellee also wrote Mr. Quick complaining that Mr. Beatty in computing the excavation allowed him had “figured only on 109 inch width of trench allowed for rock excavation in connection with 69 inch sewer”; stating that under the terms of the contract when sheathing is required additional width necessary should he allowed; that owing to the formation of the rock he was required to excavate it was not possible to sustain the sides of the cut “otherwise than by a slope,” and asking that he “be allowed to consider sections to be computed for settlement.” ³⁰⁶ In reply to these several claims of the appellee Mr. Quick wrote him on January 5th, 1909, as follows: “I have carefully considered your claim for extra compensation on your contract with the City .for building the diversion sewer around the Forest Park Reservoir. “With regard to your first claim for certain allowances for extra concrete, we told you exactly where the extra concrete was to be placed, and gave you no reason to suppose that the same order applies to other places. This applies to all voids whether in the side or bottom of the trench. * * * The simple fact is that you were directed to place a certain amount of extra concrete, both in the sides and bottom of the trench, and you have been paid for every yard of such concrete, and you should not have put in any extra concrete which you were not authorized to put in by us. * * * “As to your third claim, the specifications state distinctly that 'cradles and platforms shall be laid in the bottom of the trench should the engineer so direct. Sheathing shall be withdrawn at the discretion of the engineer, sheathing left in place and timber in platform or cradles will be paid for at proposal price.’ You have been paid for every foot of timber in cradles and platforms and every foot, of timber in sheathing which you have been directed by us, under the authority of the specifications giving us that discretion, to leave in.

That is the only thing we have to be sure of in regard to this claim. * * * In regard to the eighth claim: You have been allowed through rock a width of 109 inches from the bottom of the trench up to within 10 feet of the surface and a width of 121 inches for the remaining 10 feet. This is a liberal allowance for sheathing in either rock or earth, and is all that you are entitled to under the specifica•tions. While we do not admit that the sides of a trench must be excavated to any definite slope in this seamy or irregular rock, or indeed in any rock, even ³⁰⁷ if such were the ease the above statement would hold good, since the character and structure, or difficulties encountered in excavating the rock do not under the specifications enter into the question, a definite or maximum width of trench for which payment will he made being specifically stated. I see no objection, however, to allowing you ‘loose rock’ price for material in such slips as, in the judgment of the engineer in charge, may not be due to a want of care in excavating the trench or failure to properly sheath the same, and I shall instruct Mr. Beatty to make such an allowance. “Yours truly, “Alfred M. Quick, “Water Engineer.” On January 28th, 1909, Mr. Quick again wrote the appellee, stating’ that he had taken up the matter of his claims with the City Solicitor and the Water Board and that the Water Board had authorized him to settle the claims for extra, concrete and additional excavation upon the terms set out in the letter with the expectation that he would proceed at once to complete the work.

This offer of settlement so far as the •offer to pay for extra concrete was concerned was not accepted by the appellee. No concreting was done by the appellee after December 12th, 1908, and, the work under the contract was not resumed until March, 1909. The sewer was completed in September, 1909, the work was accepted by the Water Board October 11th, 1909, and the final estimate of the work, &c., dated October 11th, signed by Mr. Beatty, resident engineer, Mr. Sudler, assistant engineer, and approved by Mr. Quick and the Water Board, shows that the total value of the work done was $60,086.64, and that the balance due the appellee, being the amount retained by the City, was $6,008.67, of which balance $3,000.00 was paid the appellee in November, 1909, and the balance was retained by the City until the final adjustment of the “dig ³⁰⁸ puted points between” the appellee and the City and tbe execution of a proper release by the appellee. This suit was brought by the appellee in the Court of Common Pleas in May, 1910, but the trial of the case, which resulted in a judgment in favor of the appellee for $13,-C66.63, did not take place until October’, 1915.

The claim of the plaintiff is for excavation in addition to that allowed in the estimates as follows: For excavation below the grade line established by the engineer as the bottom of the trench, $661.41; for excavation beyond the width of trench fixed by the specifications, in addition to that allowed in estimate, $2,754.00, and for error in classification of material excavated, $5,483.90. The plaintiff also claims $883.55 for extra concrete placed in voids below the grade line and on the sides of the trench from October 8th to December 10th, 1908; $1,246.88 for sheathing left in the trench; $3,-180.00 damages due to delay in the prosecution of the work caused by the City; $3,008.70, the balance due him on the final estimate,- and interest on these several amounts from November 15 th, 1909. In the record of nearly four hundred pages there are thirty-seven exceptions to the rulings of the Court below on the evidence,' and one to its action on the prayers. Only two of the exceptions to the evidence were pressed in this Court, and in disposing of these and the prayers we shall not attempt to discuss the evidence in detail or to refer to it further than is necessary in considering the legal propositions involved.

The contract, as we have seen, provided that the Water Engineer should “determine the amount and quantity of the-several kinds of work” to be paid for under the contract, determine all questions in “relation” to the “work” and “the construction thereof,” and “decide