McGlynn v. Central R. R.

CROCKETT, J. The principal question arising on this appeal involves the construction of several clauses of a written contract, entered into between the plaintiff and defendant, whereby the plaintiff undertook to construct for the defendant a railroad track in San Francisco, with the necessary curves, turnouts and crossings. The contract establishes a scale of prices at which the work is to be paid for; the amount varying according to the different materials of which the roadbed is to be composed; as, for example, if it be a single track and newly paved, the price is to be two dollars and seventy cents per lineal foot; if repaved, seventy cents per lineal foot; if new plank be used, one dollar and forty cents per lineal foot; if old plank, seventy cents per lineal foot; if macadamized, seventy-five cents per lineal foot; and with the rates correspondingly increased for a double track. The contract then contains the following clause:

“Curves of short radius, per lineal foot, $1.75; curves of long radius per lineal foot, $2.00; turnouts, crossings, etc., per lineal foot, $2.00.”

In the specifications annexed to the contract and made a part of it, there occurs, under the head of “Measurement,” the following clause:

“In the measurement for payments, the length of the road shall be measured on the center line of each track; and turnouts, crossings, etc., shall be measured from point to point of switch.”

[465]The plaintiff’s constructions of. these provisions is, that the curves, turnouts and crossings are to be paid f'"»’ at the stipulated rates, to wit, one dollar and seventy-five i ts per-lineal foot for curves of short radius; two dollars pt lineal foot for curves of long radius, and at the same ra \\ for turnouts and crossings, in addition to the stipulated ¿Nice for the ordinary track. In other words, he claims that he is entitled to be paid for the entire length of the track, at the rates stipulated therefor; and in addition thereto, for the curves, turnouts and crossings, at the prices specified in the contract. His proposition is, that the curves turnouts and crossings were simply to be an extra charge, to cover the additional cost of making them, in excess of the cost of the ordinary, straight track. The defendant, however, resists this construction of the contract, and maintains that so much of the track as is included in the curves, turnouts and crossings should not be included in the estimate as so much track and be paid for as such, but shall be paid for only as curves, turnouts and crossings, at the rates provided therefor in the contract.