The facts of the case are, in brief, as follows: The plaintiff entered into a written contract with the town of Bristol to do certain construction work in connection with building sewers and their appurtenances. Prior to submitting his bid, he was shown a [2] The plaintiff claims that the answer to certain plan, showing an existing and prothis question would have shown that the posed sewerage system in the town of Bristol, plaintiff had another method in view as a and upon that plan there appeared to be an substitute for the underdrain, viz., the dig- underdrain upon Woodlawn avenue which ging of a trench southerly from Woodlawn communicated with an underdrain on Wood avenue onto private property by permission street. An underdrain is a drain underneath and then pumping accumulating water into the sewer proper. It is a sort of an open or the brook. He, however, made no such of-porous drain. The pipes are left open and fer of proof, and hence this will not avail

[4] It seems, therefore, that, under this! agreement, the additional work required to be done on Woodlawn avenue, was included in the contract, which, as we have seen, provided that "new work shall be added when necessary, to leave all in good working order." But, even if it was not comprehended in the original contract and was later ordered to be added, we think, as was ruled by the presiding justice, that the doing of this work amounted merely to a modification of the original contract in this respect, and that, in all other respects, the contract remained in full force. The witness received

for this work 65 cents a foot, the same price that he had bid for eight-inch pipe sewer. He got his pay for this work in the regular routine; that is, from the town treasurer. It came along with the payments on the rest of the job, in the regular routine of payments on the contract. This work on Woodlawn avenue he apparently did under the supervision of the engineer or his assistant. He himself says that when the water came out upon him at Wood street he complained to Mr. Craig, the representative on the work. Mr. Craig was the assistant of Mr. Gray. His offer to show that the assistant engineers representing Mr. Gray knew about the water coming in upon him and its effect upon the work, and his conversations with them about it, appear to indicate that this Woodlawn avenue job came within the purview of the original contract, and was so understood and treated by Mr. Callan. That it was not necessary as a temporary device during the work, but was necessary as a permanent structure to complete the system, is shown by the testimony on page 127 of the transcript, where the plaintiff said he wanted to wait until he had finished his job and completed his system before he put in that connection. Clearly, therefore, this connection was necessary in order, in the words of the contract, "to leave all in good working or der." The contract as made must, we think, be considered a modification of the original contract, to the extent of adding 240 feet of construction, or, if considered a new contract, it was a new contract under the same terms and conditions the original contract. That it was so understood by the parties appears from their procedure thereunder.

The claim presented to the town of Bristol and attached to the declaration, and which must have been presented to have permitted the plaintiff to have brought this suit, was introduced in evidence. The claim states that the plaintiff "by contract with the sewer commissioners, and by contract with said town of Bristol," had done certain extra work and been put to extra expense outside of the plans and specifications, and that he presents the following therefor. The bill refers to "extra work done in connection with the construction of the East Side sewer system," and starts off as follows:

The items of the first 3 days of the bill re fer to that work. On the third day, the 9th of November, he dug the outlet on Wood street. This corresponds with his testimony that it took 2 or 3 days to dig the trench on Woodlawn avenue.

Plaintiff argues, however, that he did not mean to use the words "extra work" in their ordinary, technical significance. The contract provided:

"Any changes or new work above indicated are to be paid for as extra work."

The plaintiff used exactly the same words, "extra work," although in his bill a number of extra materials are included. He includes in his bill a large number of items which relate clearly to "extra work" within the meaning of the contract, and these items were allowed by the engineer and paid. The contract provides:

"All disputes in relation to execution, construction, or completion of the work, or the quality or quantity of work or materials, or to the interpretation of the plans or specifications bearing on the work, shall be submitted to the engineer, whose decision on all points of dispute will be final, and not subject to review; and he shall have the right to correct any errors or omissions therein, when such corrections are necessary to the proper fulfillment of the intention of said specifications or plans, the action of such correction to date from the time that the engineer gives due notice thereof."

Again it is provided:

that no claims for extra work shall be made un"And the contractor hereby further agrees less the same shall be done in pursuance of a written order from the engineer."

There is some question as to whether this work on Woodlawn avenue had to be ordered by the engineer in writing, if such writing had not been waived by the commission. Such new work was to be paid for as extra work, but whether it had to be ordered in writing as other extra work is not clear. But whether it had to be ordered in writing, or was new work under the contract, or extra or additional work under a modified contract, is immaterial, as the work has been done and paid for and the determination of this question does not affect the right to recover in this case.

There is also the following provision:

"It is hereby mutually agreed by the parties to this contract that the value of any such expursuant to a written order of the engineer) is tra work so claimed (that is, extra work done to be determined by the engineer, and that his decision thereon shall be final and binding upon both parties."

And again the contract sets forth fully when and how and under what circumstances the final payments should be made, and then provides as follows:

"And the said contractor hereby further agrees that he shall not be entitled to demand or receive payment for any portion of the aforesaid work, except in the manner set forth in this agreement.'

[5, 6] The evidence shows that Mr. Gray allowed Mr. Callan all the extras that he thought he was entitled to, and that everything that he allowed has been paid. Even if this was entirely outside of, and independent of, the contract, this would not permit the plaintiff to recover in this case. He agreed to lay the underdrain on Woodlawn avenue for a certain price, and, unless this was made subject to the written contract, he was entitled to no further compensation for work incident thereto, even if such work was much more than he had anticipated. 30 Am. & Eng. Encyc. of Law (2d Ed.) 1279, 1280. If the work on Woodlawn avenue was within the contract, or within the contract as modified, or extra work under the contract, he could not recover in this proceeding; for not only does the contract not provide for such recovery, but it expressly forbids it. Under the contract the contractor is "to do all pumping," etc.

the other work, did not render it extra work,
for, as we have said, the written contract pro-
be done.
vided by necessary implication that it should

The fact that it was stated that the un

derdrain on Wood street was a working underdrain would not authorize recovery.

As to the existence of an underdrain on Woodlawn avenue, the plaintiff admits that the only way he was misled was by seeing a representation of such an underdrain on a plan that was shown him and that he was not misled in anything that was material; in other words, whatever misrepresentation there was was not a material misrepresentation. It is not claimed that there was any fraud in this respect. It is merely claimed that the exhibition of this plan constituted an innocent misrepresentation of a fact which turned out not to have been material. This plan was not one of the plans referred to in, and made a part of, the contract, but

There is also in the contract the following was merely a plan of the whole Bristol sewprovision:

"And the contractor hereby further agrees to receive the following prices in full for furnishing all materials, whether enumerated or not, and all labor required in the aforesaid work; also for all loss or damage arising out of the nature of the work aforesaid, or from the action of the elements, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, * * and for well and faithfully completing the same and the whole thereof in the manner and according to the plans and specifications and requirements of the engineer under them."

*

There is also a provision for monthly estimates. The contract clearly provides for what and how the contractor should be paid and he is limited strictly to such recovery. In Lee v. Brayton, 18 R. I. 233, 26 Atl. 256, the court said:

er system. It was not one of the plans referred to in the "Notice to Contractors" as being able to be seen "at office of the commission, or at the office of the consulting engineer."

In this connection it is to be noted that:

The "estimated quantities are approximate only, and the said commission therefore expressly reserves the right of increasing or diminishing the same, as may be necessary in the judgment of the engineer."

So far as this contract is concerned, the plan does not enter into it, and has nothing to do with it.

[7] As to the statement alleged to have been made that there was a working underdrain on Wood street, it is not claimed that that was fraudulently made, but it is claim"The respondent concedes that the petitioner ed that it was a misrepresentation, because is entitled to a lien for the $325, the last in- when the underdrain was opened some time stallment of the contract price, but contends afterwards it is claimed that it was in some that the blasting of rock and the other items charged in the account for labor and materials way clogged up. It is not clear that there were extra work, and therefore that the peti- was even a misrepresentation in this conneċtioner is not entitled to a lien therefor, because tion. Assuming that it was stated that this clause 13 of the contract provides that no claim was a working underdrain, there was cershall be made for extra work, unless the same shall have been done in fulfillment of a writ- tainly no guaranty that it should not be ten order from the architect, and also such filled with water at any particular point on claims shall be made in writing to the archi- account of the large amount of moisture in tect, and, if allowed by him, shall be approved the ground and the large flow of water renand indorsed on the contract after the next ensuing payment, and that no such indorsement dering it impossible to take care of the waappears on the contract. We are of the opin- ter fast enough. Such a drain, which is ion that the blasting of rock, being particular- more or less open and porous, is merely to ly mentioned in the specifications accompany assist in caring for the moisture in the ing the contract, is to be regarded as work done under the contract, and not as extra work, ground, and, on account of its porous nature, within the meaning of clause 13. It was work is very apt to have dirt or sand washed into provided for in the contract and necessary for it. It might well have been "working" when the completion of the house in accordance with the statement was made, and thereafterwards it, since the drains mentioned in the specifications could not be excavated without the blasting and removal of the rock. It is true that the amount to be paid for it was extra, outside of or in addition to the price to be paid for the other work; doubtless because it could not be known until the excavation had been made how much blasting was necessary, or how expensive it would be; and therefore no estimate of its cost could be made beforehand; but the fact that the cost of it was thus left indeterminate, and was to be paid in addition to the price for

become clogged up or filled up. There is no
evidence as to what stopped it up, if it was
stopped up, nor as to how long it had been
Even if there was a misrepre-
stopped up.
sentation of an underdrain, this would not
permit the plaintiff to recover. In Cun-
ningham v. City of New York, 39 Misc. Rep.
197, 79 N. Y. Supp. 401, the plan of a sewer
which the plaintiff was to construct had on

part and parcel of his original contract, or, if there was an entirely new and independent contract, then it was a contract to do certain work for certain compensation, and there was no provision for extra compensation if the work turned out to be greater than anticipated. If more work was involved for any reason than he expected, and that was properly chargeable against the town, he would have to recover for it as "extra work" after it had been allowed by the engineer. But the contract provides:

it lines which showed an existing sewer | for the pumping as the pumping out of wawhich would have furnished drainage dur- ter from whatever source it came was a ing the progress of the plaintiff's work, and with which sewer the sewer that was to be constructed by the plaintiff was to connect, and both plaintiff and defendant entered into the contract in contemplation of that fact. There was an intervening building which the city was to remove, but had not removed; and hence the plaintiff was required to commence at another point than the connection with that sewer. He completed his contract and received his pay therefor, and then brought suit to recover damages for extra work in pumping and other respects, but recovery was denied him, the court saying:

"The contract is in writing. Its terms are clear and unambiguous, and, so far as I have been able to discover, it contains no reference to any existing sewer, and makes no provision for any outlet for water in the excavation during the progress of the work, excepting the marks or lines upon the plan which are said to show the existence of a sewer in Lafontaine avenue; but I doubt very much whether the designation of such a sewer upon a plan could overcome the plain language of the contract. Dean v. City of New York, 167 N. Y. 13, 60 N. E. 236."

In Stuart v. Cambridge, 125 Mass. 109, the plaintiff was to dig to any depth necessary to secure a solid foundation. It developed that they had to drive piles to secure such foundation. The court said:

"The evidence offered by the plaintiffs, that they made their estimate according to a plan made by the defendant's architect, showing a section of the wall which required only a depth of 14 inches, and did not require any piles, and that it was customary for other persons * * * to make estimates in similar cases in the same manner, was incompetent, because it tended to control and vary the written contract."

Evidence that the architect told plaintiff to go ahead was held to be inadmissible because:

*

"The written contract carefully provides that any additions to or deviations from the plans and specifications shall be directed in writing by the committee or architect, and that 'it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.' * *This clause was intended to protect the defendant against claims for extra work under alleged oral directions or contracts." In Thileman v. City of New York, 82 App. Div. 136, 81 N. Y. Supp. 773, there was no sewer at the place indicated on the map. It was provided that the contractor should, at his own expense, keep all the trenches free from water. Had there been a sewer available, expensive pumping would have been avoided. The plaintiff sought to recover for this pumping. The court said that "the city entered into no contract, express or implied, that it would supply a sewer that would drain off the water, but, on the contrary, the contractor agreed to supply the necessary pumps and facilities for that purpose," and denied recovery.

"That no claims for extra work shall be made unless the same shall be done in pursuance of a written order from the engineer.'

Under these circumstances, without such written order no recovery can be had. Stuart v. City of Cambridge, 125 Mass. 102; City of Hutchinson v. White, 80 Kan. 37, 101 Pac. 458, at page 459. Nor can the engineer waive any of the provisions of the contract. Stuart v. City of Cambridge, supra; Cashman v. City of Boston, 190 Mass. 215, 76 N. E. 671.

In Molloy v. Village of Briarcliff Manor, 145 App. Div. 483, 491, 129 N. Y. Supp. 929, at page 936, the court said with reference to a similar provision as to extra work:

"Concededly no written orders were given for this particular work, and there is no proof of any waiver by the defendant. A provision of this kind cannot be waived by the engineer."

pra.

[9, 10] The plaintiff offered to show that the inspector or assistant engineers knew about the extra work he was doing, and he notified them that he should demand extra compensation. The duties of the assistant engineers were limited to the particular duties intrusted to them, and not even the engineer himself could waive any of the provisions of the contract. See cases cited suKnowledge that the work was being done will not create a promise to pay. Beattie et al. v. McMullen et al., 82 Conn. 484, 74 Atl. 767, at page 773; Harrison Granite Co. V. Stephens, 160 Mich. 51, 125 N. W. 36; James Reilly Co. v. Smith, 177 Fed. 168, 100 C. C. A. 630. But even if he was entitled to recover for pumping as extra work, and there was a waiver of the order in writing, his claim for extra work was, as the court said, subject to all the conditions of the original contract. Beattie et al. v. McMullen et al., 82 Conn. 484, 74 Atl. 767, at page 773. this case the plaintiff "agrees that he shall not be entitled to demand or receive payment for any portion of the aforesaid work, except in the manner set forth in this agree

ment."

In

[11] The plaintiff in his brief claims that: Woodlawn avenue] as entirely outside of the "The parties saw fit to treat it [the work on written contract, as shown by the fact that it was not ordered in writing or otherwise by the engineer, was not submitted to him by either the commissioners or the plaintiff for his allowance, that it was paid in violation of all the [8] The plaintiff is not entitled to recover provisions of said contract as to ordering, al