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[1] The first exception, shown on page 126 The offer of proof that is the subject-matof the transcript, related to the ruling out ter of the fifth exception relates to the quesof the following question: "Q. Did you rec-tion of damages and to like conversations as ommend any course?” The plaintiff had tes- are referred to in the question that is the tified that the purpose of the verbal con- subject-matter of the fourth exception. tract for the putting in of 240 feet of pipe The offer of proof that is the subject-matter on Woodlawn avenue, to connect with the un- of the sixth exception is that the defendant's derdrain on Wood street, was "so as to take representatives, the sewer commission and the water away from my trench and drain the engineer, were at fault and responsible the soil, the land, as the new work was con- for turning this water onto them; that they structed.” Asked if that method was recom- turned the water onto them, and that nemended by him or by somebody else, he an- cessitated a lot of extra work for which they swered: “Not by me.” He was then asked claim compensation, and that they knew that the question to the exclusion of which the they were doing this work, and that they exception was taken. It seems to us that the should claim extra compensation, but that question was properly ruled out for the rea- they never agreed to pay compensation. If son stated by the trial judge:

the nonsuit was proper, this offer of proof “The Court: It seems to me his evidence was properly rejected. should be confined to showing the plans they

[3] The seventh exception is the real basis adopted were not proper, then, Mr. Crafts. That does not involve saying he had some oth of this proceeding, and that relates to the er plans which were better. His testimony granting of the defendant's motion for a nonmust be limited to showing these plans were not suit. proper.”

The facts of the case are, in brief, as folMoreover, the plaintiff later testified that lows: The plaintiff entered into a written he wanted to wait until he had completed his contract with the town of Bristol to do cersystem before putting in the underdrain, but tain construction work in connection with they decided that it would better be done building sewers and their appurtenances. then.

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 porous at the joints, so that water can get in him.

from the surrounding soil. Sometimes they In O'Malley v. Commonwealth, 182 Mass. are of tile drain, so that water can get in 196, 65 N. E. 30, the court held that:

all the way. It is simply a drain to assist in "In order to sustain an exception to the ex- caring for the water that is in the ground clusion of a question to a witness, it must ap- through and along which the underdrain pear what the excepting party expected to prove by the answer, and that he was harmed by the runs. exclusion."

The sewer and underdrain appurtenant See, also, Farnum v. Pitcher, 151 Mass. 470, thereto that Mr. Callan was to construct was at page 475, 21 N. E. 590; Carpenter v. Wil- to have started at Woodlawn avenue about ley, 65 Vt. 168, 26 Atl. 488; Gage v. Trawick, 210 feet from Wood street, and the under94 Mo. App. 307, 68 S. W. 88; Loker v. S. drain was to have been connected with an Mo. Elec. Ry. Co., 94 Mo. App. 481, 68 S. W. underdrain that was supposed to be there, 373; Greever v. Bank, 99 Va. 547, 39 S. E. running to and connecting with an under159.

drain on Wood street, and the sewer was to As to the second exception, if the nonsuit, have run in a general northerly direction, was properly granted, the question that was with branches leading into different cross ruled out, to which the exception was taken, streets. When the plaintiff dug down to would be immaterial. The question refers to start the sewer and the underdrain connected the extra time taken doing the work, and therewith, he did not find any underdrain on could only be material on the question of Woodlawn avenue. The matter was then damages.

taken up with the commission, and the comThe offer of proof which is the subject-mat- mission decided, in order to complete that ter of the third exception relates to the same part of the sewerage system, to have the matter as the question which is the subject- plaintiff put in an extra 240 feet of undermatter of the second exception.

drain on Woodlawn avenue, which was the The fourth exception relates to conversa-only additional amount that was required tions with the commissioners, or members of to connect with Wood street, the price to be the commission, or the assistant engineers paid being the same as the price paid for the representing Mr. Gray. If the nonsuit was rest of the work. The underdrain on Woodproperly granted, this would have no bear- lawn avenue was to be connected with the ing upon the case.

main underdrain on Wood street.

The claim on behalf of the plaintiff, in the ferred to in the contract, yet it was such beginning, was that he was misled by a ma- work as was impliedly required by the contèrial, though innocent, misrepresentation as tract, as, under the contract, Mr. Callan to the existence of this underdrain on Wood- agreed to "do and perform all the work, and lawn avenue. This claim was later aban- furnish all tools, implements, and materials, doned, and it was admitted that, while there which may be required for the construction was a misrepresentation as to the existence of sewer and appurtenances, in accordance of an underdrain on Woodlawn avenue, it with the specifications herein contained, and was not a material one, and had no effect in accordance with the plans and directions whatsoever upon his work, except to cause made and to be made from time to time as the construction of an extra 240 feet, and the work proceeds." did not give rise to his present claim. It If there was no underdrain along this short simply resulted in his having to build an ex- stretch of 240 feet, there would not be a tra section of sewer for which he received complete sewer system. To provide for the compensation.

changes or alterations or extensions that When the plaintiff opened up the under- might have to be made, this provision with drain on Wood street to make a connection reference to the work being done, not only with the new underdrain that he had con- “in accordance with the plans and direcstructed on Woodlawn avenue, a stream of tions made,” but also in accordance with the water gushed out. He claims that he was plans and directions “to be made,” was put told that the underdrain on Wood street was in. Further, under the head of "Additional a working underdrain, and that the fact that Work," etc., there is the following provision: this stream of water gushed out and contin- "If so directed by the engineer, the location ued to come from that underdrain for a con- of any existing work shall be changed to meet siderable period of time showed that it was the requirements of the sewers or appurtenancclogged up, and hence it was not a work- to leave all in good working order. Any changes

es, and new work shall be added when necessary, ing underdrain. It is for the work done in or new work above indicated are to be paid for pumping out the water which came from as extra work, solely on the valuation of the this Wood street underdrain and for inciden- engineer, but depending on his decision wheth

er the work done is, or is not, included in the tal damages due to the water coming into the work required of the contractor under this contrench that he was digging and had dug on tract.” Woodlawn avenue and that he was digging and had dug on the rest of the system in- to new work refers to new work added to

The plaintiff claims that this provision as cluded in the original contract that he seeks existing work that has to be changed to meet to recover in this proceeding, claiming that, the requirements of the sewers or appurto entitle him to recover, he is not obliged to

tenances. The provision, however, says: have the same allowed by the engineer as ex- “And new work shall be added when necestras. The defendant, on the other hand, claims sary, to leave all in good working order.”

Further, this underdrain on Woodlawn avthat, to entitle the plaintiff to recover, he is

enue could be considered as added to existing gineer as extras, and this is the real specific work, whether it is considered that the new gineer as extras, and this is the real specific underdrain was extended down Woodlawn question raised in this case, and a subordi- avenue to Wood street, or from the old unnate question is as to whether, if this is not derdrain on Wood street to the new underincluded in the term "extras,” as provided drain that was to commence at the point in the contract, and the plaintiff merely originally designated on Woodlawn avenue. claims, as he does, that he was damaged by That would be adding new work to existing the town dumping a lot of water upon him, work where it was “necessary, to leave all in he can recover against the town in an action good working order," and such new work of assumpsit, or whether he must seek to re-was “to be paid for as extra work, solely on cover against the town for a tort.

the valuation of the engineer, but depending The plaintiff, in order to maintain his con

upon his decision as to whether the work tention that the pumping referred to in his done is or is not included in the work rebill was not included in the contract, and

quired by the contractor under this conwas not to be considered under the head of

tract." extras in the contract, maintains that the

It seems that the underdrain on Woodlawn underdrain on Woodlawn avenue had noth

avenue was reasonably necessary and inciing whatsoever to do with the contract, and dental to the original contract, and this hence that the pumping was not required in seems to have been the idea of the plaintiff's connection with anything that he was doing seems to have been the idea of the plaintiff's under the contract.

time he said: One of the main items of damages for which the plaintiff seeks to recover on ac-structed upon Woodlawn avenue unless it con

“In the first place there was no sewer concount of this water coming in upon him is nected with something. He wouldn't construct for delay to the work that he was required to a sewer there, beginning without any connec. do under the contract itself. The defendant tion and pumping a lot of water into Woodlawn claims that, while the underdrain on Wood- that he connected there at Woodlawn avenue

avenue. It presupposes on the very face of it lawn avenue was not originally expressly re- with some other drain.

99

* "

[4] It seems, therefore, that, under this “Work done on Woodlawn avenue where un agreement, the additional work required to derdrain was on top of pipe so that connection be done on Woodlawn avenue, was included could not be made." in the contract, which, as we have seen, pro- The items of the first 3 days of the bill re vided that “new work shall be added when fer to that work. On the third day, the 9th of necessary, to leave all in good working or- November, he dug the outlet on Wood street. der." But, even if it was not comprehended This corresponds with his testimony that it in the original contract and was later order- took 242 or 3 days to dig the trench on ed to be added, we think, as was ruled by Woodlawn avenue. the presiding justice, that the doing of this Plaintiff argues, however, that he did not work amounted merely to a modification of mean to use the words "extra work” in their the original contract in this respect, and ordinary, technical significance. The conthat, in all other respects, the contract re-tract provided: mained in full force. The witness received "Any changes or new work above indicated for this work 65 cents a foot, the same price are to be paid for as extra work.” that he had bid for eight-inch pipe sewer. The plaintiff used exactly the same words, He got his pay for this work in the regular “extra work," although in his bill a number routine; that is, from the town treasurer. of extra materials are included. He includes It came along with the payments on the rest in his bill a large number of items which reof the job, in the regular routine of pay- late clearly to "extra work” within the ments on the contract. This work on Wood- meaning of the contract, and these items lawn avenue he apparently did under the were allowed by the engineer and paid. supervision of the engineer or his assistant. The contract provides: He himself says that when the water came "All disputes in relation to execution, conout upon him at Wood street he complained struction, or completion of the work, or the

quality or quantity of work or materials, or to to Mr. Craig, the representative on the work. the interpretation of the plans or specifications Mr. Craig was the assistant of Mr. Gray. His bearing on the work, shall be submitted to the offer to show that the assistant engineers engineer, whose decision on all points of disrepresenting Mr. Gray knew about the water pute will be final, and not subject to review;

and he shall have the right to correct any ercoming in upon him and its effect upon the rors or omissions therein, when such correcwork, and his conversations with them about tions are necessary to the proper fulfillment of it, appear to indicate that this Woodlawn the intention of said specifications or plans, the avenue job came within the purview of the that the engineer gives due notice thereof."

action of such correction to date from the time original contract, and was so understood and treated by Mr. Callan. That it was not nec

Again it is provided:

"And the contractor hereby further agrees essary as a temporary device during the

that no claims for extra work shall be made unwork, but was necessary as a permanent less the same shall be done in pursuance of a structure to complete the system, is shown written order from the engineer. by the testimony on page 127 of the tran

There is some question as to whether this script, where the plaintiff said he wanted to work on Woodlawn avenue had to be ordered wait until he had finished his job and com- by the engineer in writing, if such writing pleted his system before he put in that con- had not been waived by the commission. nection. Clearly, therefore, this connection Such new work was to be paid for as extra was necessary in order, in the words of the work, but whether it had to be ordered in contract, “to leave all in good working or writing as other extra work is not clear. der.” The contract as made must, we think, But whether it had to be ordered in writing, be considered a modification of the original or was new work under the contract, or excontract, to the extent of adding 240 feet of tra or additional work under a modified conconstruction, or, if considered a new contract, tract, is immaterial, as the work has been it was a new contract under the same terms done and paid for and the determination of and conditions as the original contract. this question does not affect the right to reThat it was so understood by the parties ap- cover in this case. pears from their procedure thereunder.

There is also the following provision: The claim presented to the town of Bristol "It is hereby mutually agreed by the parties and attached to the declaration, and which to this contract that the value of any such exmust have been presented to have permitted tra work so claimed (that is, extra work done

pursuant to a written order of the engineer) is the plaintiff to have brought this suit, was to be determined by the engineer, and that his introduced in evidence. The claim states decision thereon shall be final and binding upthat the plaintiff "by contract with the sewer

on both parties." commissioners, and by contract with said And again the contract sets forth fully town of Bristol," had done certain extra when and how and under what circumstancwork and been put to extra expense outside es the final payments should be made, and of the plans and specifications, and that he then provides as follows:

re

"And the said contractor hereby further agrees fers to “extra work done in connection with that he shall not be entitled to demand or re

ceive payment for any portion of the aforesaid the construction of the East Side sewer sys- work, except in the manner set forth in this tem," and starts off as follows:

agreement.'

[5, 6] The evidence shows that Mr. Gray the other work, did not render it extra work, allowed Mr. Callan all the extras that he for, as we have said, the written contract prothought he was entitled to, and that every- vided by, necessary implication that it should

| tbing that he allowed has been paid. Even if this was entirely outside of, and independ

The fact that it was stated that the unent of, the contract, this would not permit the derdrain on Wood street was a working unplaintiff to recover in this case. He agreed derdrain would not authorize recovery. to lay the underdrain on Woodlawn avenue

As to the existence of an underdrain on for a certain price, and, unless this was made Woodlawn avenue, the plaintiff admits that subject to the written contract, he was enti- the only way he was misled was by seeing a tled to no further compensation for work in representation of such an underdrain on a cident thereto, even if such work was much plan that was shown him and that he was more than he had anticipated. 30 Am. & not misled in anything that was material; Eng. Encyc. of Law (2d Ed.) 1279, 1280. If in other words, whatever misrepresentation the work on Woodlawn avenue was within there was was not a material misrepresentathe contract, or within the contract as modi- tion. It is not claimed that there was any fied, or extra work under the contract, he fraud in this respect. It is merely claimed could not recover in this proceeding; for not that the exhibition of this plan constituted only does the contract not provide for such an innocent misrepresentation of a fact recovery, but it expressly forbids it. Under which turned out not to have been material. the contract the contractor is "to do all This plan was not one of the plans referred pumping," etc.

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:

er system. It was not one of the plans re“And the contractor hereby further agrees to ferred to in the “Notice to Contractors” as receive the following prices in full for furnish- being able to be seen "at office of the coming all materials, whether enumerated or not, mission, or at the office of the consulting enand all labor required in the aforesaid work; also for all loss or damage arising out of the

gineer." nature of the work aforesaid, or from the ac- In this connection it is to be noted that: tion of the elements, or from any unforeseen ob- The "estimated quantities are approximate struction or difficulties which may be encoun- only, and the said commission therefore extered in the prosecution of the same,

pressly reserves the right of increasing or diand for well and faithfully completing the same minishing the same, as may be necessary in the and the whole thereof in the manner and ac- judgment of the engineer. cording to the plans and specifications and requirements of the engineer under them."

So far as this contract is concerned, the There is also a provision for monthly esti- plan does not enter into it, and has nothing mates. The contract clearly provides for to do with it. what and how the contractor should be paid

[7] As to the statement alleged to have and he is limited strictly to such recovery. been made that there was a working underIn Lee v. Brayton, 18 R. I. 233, 26 Atl. 256, drain on Wood street, it is not claimed that the court said:

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 connectioner 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 blast- become clogged up or filled up. There is no ing and removal of the rock. It is true that evidence as to what stopped it up, if it was the amount to be paid for it was extra, outside stopped up, nor as to how long it had been of or in addition to the price to be paid for the other work; doubtless because it could not be stopped up. Even if there was a misrepreknown until the excavation had been made how sentation of an underdrain, this would not much blasting was necessary, or how expensive permit the plaintiff to recover. In Cunit would be; and therefore no estimate of its ningham v. City of New York, 39 Misc. Rep. cost could be made beforehand; but the fact that the cost of it was thus left indeterminate, 197, 79 N. Y. Supp. 401, the plan of a sewer and was to be paid in addition to the price for which the plaintiff was to construct had on 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 part and parcel of his original contract, or, with which sewer the sewer that was to be if there was an entirely new and independconstructed by the plaintiff was to connect, ent contract, then it was a contract to do and both plaintiff and defendant entered into certain work for certain compensation, and the contract in contemplation of that fact. there was no provision for extra compensaThere was an intervening building which tion if the work turned out to be greater than the city was to remove, but had not remov- anticipated. If more work was involved ed; and hence the plaintiff was required to for any reason than he expected, and that commence at another point than the connec- was properly chargeable against the town, he tion with that sewer. He completed his would have to recover for it as "extra work” contract and received his pay therefor, and after it had been allowed by the engineer. then brought suit to recover damages for But the contract provides : extra work in pumping and other respects, “That no claims for extra work shall be made but recovery was denied him, the court say- unless the same shall be done in pursuance of

a written order from the engineer.' ing: “The contract is in writing. Its terms are

Under these circumstances, without such clear and unambiguous, and, so far as I have written order no recovery can be had, Stubeen able to discover, it contains no reference art v. City of Cambridge, 125 Mass. 102; to any existing sewer, and makes no provision for any outlet for water in the excavation dur- City of Hutchinson v. White, 80 Kan. 37, 101 ing the progress of the work, excepting the Pac. 458, at page 459. Nor can the engineer marks or lines upon the plan which are said to waive any of the provisions of the contract. show the existence of a sewer in Lafontaine Stuart v. City of Cambridge, supra; Cashavenue; but I doubt very much whether the designation of such a sewer upon a plan could man v. City of Boston, 190 Mass. 215, 76 overcome the plain language of the contract. N. E. 671. Dean v. City of New York, 167 N. Y. 13, 60 N. In Molloy V. Village of Briarcliff Manor, E. 236."

145 App. Div. 483, 491, 129 N. Y. Supp. 929, In Stuart v. Cambridge, 125 Mass. 109, the at page 936, the court said with reference plaintiff was to dig to any depth necessary to a similar provision as to extra work: to secure a solid foundation. It developed "Concededly no written orders were given for that they had to drive piles to secure such this particular work, and there is no proof of foundation. The court said:

any waiver by the defendant. A provision of “The evidence offered by the plaintiffs, that this kind cannot be waived by the engineer.” they made their estimate according to a plan (9, 10] The plaintiff offered to show that made by the defendant's architect, showing a the inspector or assistant engineers knew section of the wall which required only a depth of 14 inches, and did not require any piles, and about the extra work he was doing, and he that it was customary for other persons notified them that he should demand extra *

to make estimates in similar cases compensation. The duties of the assistant in the same manner, was incompetent, because engineers were limited to the particular duit tended to control and vary the written con- ties intrusted to them, and not even the entract.”

gineer himself could waive any of the proEvidence that the architect told plaintiff visions of the contract. See cases cited suto go ahead was held to be inadmissible be

pra.

Knowledge that the work was being cause :

done will not create a promise to pay. Beat“The written contract carefully provides that tie et al. v. McMullen et al., 82 Conn. 484, 74

or and specifications shall be directed in writing Atl. 767, at page 773; Harrison Granite Co. by the committee or architect, and that “it is v. Stephens, 160 Mich. 51, 125 N. W. 36; expressly agreed that no alterations or addi- James Reilly Co. v. Smith, 177 Fed. 168, 100 tions are to be paid for unless so directed in C. C. A. 630. But even if he was entitled to writing.' *

This clause was intended to protect the defendant against claims for extra recover for pumping as extra work, and there work under alleged oral directions or contracts." was a waiver of the order in writing, his

In Thileman v. City of New York, 82 App.claim for extra work was, as the court said, Div. 136, 81 N. Y. Supp. 773, there was no subject to all the conditions of the original sewer at the place indicated on the map. It contract. Beattie et al. v. McMullen et al., was provided that the contractor should, at 82 Conn. 484, 74 Atl. 767, at page 773. In his own expense, keep all the trenches free this case the plaintiff “agrees that he shall from water. Had there been a sewer avail- not be entitled to demand or receive payment able, expensive pumping would have been for any portion of the aforesaid work, exavoided. The plaintiff sought to recover for cept in the manner set forth in this agree

ment." this pumping. The court said that “the city entered into no contract, express or implied,

[11] The plaintiff in his brief claims that: that it would supply a sewer that would Woodlawn avenue) as entirely outside of the

"The parties saw fit to treat it [the work on drain off the water, but, on the contrary, the written contract, as shown by the fact that it contractor agreed to supply the necessary was not ordered in writing or otherwise by the pumps and facilities for that purpose,” and engineer, was not submitted to him by either denied recovery.

the commissioners or the plaintiff for his al

lowance, 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

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