DocketNumber: No. 17,188
Citation Numbers: 93 Neb. 690
Judges: Barnes, Eawoett, Hamer, Letton, Reese, Rose, Sedgwick
Filed Date: 5/17/1913
Status: Precedential
Modified Date: 7/20/2022
In 1905 the county board of Burt county entered into a contract with defendant Lewis for the excavation of a
The only errors assigned are that the finding and judgment are contrary to the evidence, not sustained thereby, and contrary to law.
The contract provides that, when a part not less than one-fourth of the portion included in any contract is com
The appellants contend that the language of the contract prohibits the payment of any money until one-fourth of the ditch had been wholly completed, and does not mean when one-fourth of the excavation had been made; that, since it costs more to remove the lower strata of dirt from the excavation than .the top layers, the county had no right to pay full price for the dirt excavated from the top. The evidence shows that it is more costly to remove the lower portion of the excavation than the upper with the appliances that this contractor was using, but it is also shown that by using a dredge the cost of the entire excavavation would be about the same without reference to the depth; that the use of a dredge was practicable, and that one was used in finishing the work. Even if it were true that it cost more to remove the lower strata than the upper, since the contract makes no distinction as to price in this respect, the estimate by yardage without reference to depth could not be a breach thereof, and the sureties cannot complain. The “work” mentioned in the contract is evidently the work of excavation. The whole work to be done was of this nature, and it seems to have been quite uniform in character. Any other interpretation of the meaning of the contract might lead to a result more detrimental to the sureties than the one adopted. If lineal distance of the completed ditch were to be taken' as the test, the money might be payable when but a comparatively insignificant portion of the whole excavation had
Appellants also contend there was a material variation in the contract, because it was extended without their knowledge or consent. The statute allows extensions to be made by agreement not to exceed two years. The bond itself provides that any departure from the strict terms of the contract made under a written agreement of the parties shall not release the sureties. The extension was niade by a written request and a written consent to the same, hence it was within the terms of the bond. The last extension of the contract expired on November 1, 1906, and the rights and liabilties of the sureties became fixed. The county, therefore, could not increase the liability of the sureties by any interference with the work to their detriment. Nor did it do so. The evidence shows that further work was performed by the contractor, 75 per cent, of which, was paid for at the contract price. This was for the direct benefit of the sureties, since the cost per cubic yard of completing the unfinished work under the new contract was in excess of the original price. The cases cited by appellant, Brennan v. Clark, 29 Neb. 385, Gallagher n. St. Patrick’s Church, 45 Neb. 535, and Bell v. Paul, 35 Neb. 240, are not strictly in point, since no infringement of or material change in the terms of the contract has been shown, while such was the fact in the cases mentioned.
.We find no error in the record. The judgment of the district court is
Affirmed.