Dickinson v. Water Commissioners , 5 Thomp. & Cook 185 ( 1874 )

Tappen, J.

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.