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Dickinson v. Water Commissioners

5 Thomp. & Cook 185 Court N.Y. Sup. Ct. English

Delivered by Tappen, J.

Contents

Majority

p. 185
Dickinson v. Water Commissioners of Poughkeepsie.

Headnote

Contract—construction of—Boidence— natv/re of hard-pa/n.
In a contract in which plaintiff agreed to excavate rock at one price and earth at another, it was provided that “ work not herein classed or defined as to price shall he paid for at cost and fifteen per cent added.” In an action for work done under the contract, held, that evidence was admissible to show that hard-pan was neither rock nor earth.
Appeal by plaintiffs from a judgment in favor of defendants entered upon the verdict of a jury.
p. 186
The action was brought in Dutchess county by Pomeroy P. Dickinson and others against the Water Commissioners of the city of Poughkeepsie to recover for work, labor and services under a contract for excavating. The opinion states sufficiently the only material point in the case.
Nelson, Cooke & Thorn and A. Anthony, for appellants.
Thompson & Weeks, for respondent.

The plaintiff entered into a contract in writing with defendants for work on a reservoir, which contract contained the following clause : “Work not herein classed, or defined as to price, and which said contractors may be directed by said engineer in writing to do, shall be paid for at cost and fifteen per cent added.” The contract provided for earth excavation at one price and rock excavation at another price. The plaintiff brought the action to recover compensation for other excavations, which he claimed were not rock or earth, and were, therefore, not classed. The excavation in dispute was known as hard-pan. At the trial the plaintiff offered to prove that it was neither rock nor earth, and not included in those items in the contract. The court refused to admit the testimony and nonsuited the plaintiff.

We are of opinion that such testimony was admissible, and that its rejection was error. The judgment should, for that reason,,be reversed and a new trial ordered, costs to abide the event.

Judgment reversed and new trial ordered.