Ferguson Contracting Co. v. State

The claimant made a contract with the State of New York, April 3, 1905, for the improvement of a section of the Erie canal adjoining the village of Waterford, consisting generally in the excavation and protection of the sides of the so-called Barge canal from, the Mohawk river to a point about a quarter of a mile west of the head of lock No. 3 and the construction of locks Nos. 2' and 3, with the approaches and appertaining parts, covering a distance of ninety-one one-hundredths miles. i

Thereafter from time to time, with the assent of the claimant, alterations were made by the State in the plans and specifications, until April 14, 1909, when the State directed' certain alterations to be made known as “Alteration No. 7 ” which provided for changing the plan for retaining wall at the head of lock No. 2, extending the walls at the crossing of the old Champlain canal and forming a junction with the sides thereof; substituting a concrete lining for the puddle lining in the bottom of the canal between certain points, substituting concrete retaining walls for the pine docking .of the canal at certain points, eliminating the puddling on the sides and on the bottom in certain places, raising the by-pass channel under lock - No. 3 -and changing the specifications • for crushed stone to be used in the concrete.

The explanation contained in the alteration order for these changes made by the State is that the section of the canal at the head of lock No. 3 had become eroded by the flow of water in Cemetery creek; that this erosion had taken place along the line of the retaining wall on each side of the canal and that it would be necessary to carry the foundation of these walls to -a lower level, so that the base of the wall would rest on undisturbed material; that at the crossing of the present Ohamplain canal the sides of the new canal had not been carried sufficiently far to form a good connection with the bulkheads and the masonry wall of the old canal, and that a slight extension thereof became necessary; that the puddle lining, which was provided by the original plans in a certain section in the bottom of the canal, was not sufficient to prevent seepage through the sand and gravel through which the channel had .been excavated, and that the clay puddle lining *481would be subjected to erosion from the action of the water stirred up by the propellers of boats, and that a concrete lining nine inches thick had been substituted in a certain part of the canal to provide against such seepage and erosion; that the pile docking, which was called for by the original plans in a certain section of the canal, was subject to decay ■and would require renewal every few years; that it was thought desirable to substitute a concrete retaining wall on each side of the channel through this portion of the canal; that the clay puddle lining had been provided on the sides and bottom of the canal in- certain sections where the excavation was deep and the material in the bottom compact, and that it was thought unnecessary to retain this lining for the purpose of preventing seepage and it had, therefore, been eliminated; that the original plans required that, a by-pass channel around lock Ho. 3 should be excavated to about the grade of the canal below the lock, which would make a wide deep channel that would always be full of water adjacent to the lock, and that it had been thought desirable to raise the grade of this by-pass, so that the bottom would be above the normal water level, and to provide a concrete retaining dam at the lower end where the water dropped to a lower level; that it had been demonstrated that the best stone for making concrete was that in which the proportion of small particles Avas sufficient to reduce the voids to a minimum, and that it was thought desirable to alloAv the use of all particles of stone greater than one-eighth of an inch in diameter instead of, as called for by the specifications, one-half inch in diameter.

The amount of estimated work under the contract, including alteration order Ho. 7 and prior orders, was $946,106.76 and the amount of work excluding order Ho. 7 was $906,-396.26; alteration order Ho. 7 added work amounting to $74,848.90 and decreased work amounting to $35,639.40, so that there Avas an actual increase in the work amounting to $39,209.50.

The claimant was mrwilling to accept the alterations in the plans and specifications -proposed by “Alteration Order Ho. 7,” claiming that they constituted a fundamental change in the contract, and declined to' accept them; Avhereupon the *482Canal Board, on May 13, 1909, canceled the contract and readvertised the remainder of the work under the contract and let it to another contractor.

The case turns upon the construction of the contract and particularly of the -clause relating to alterations as bearing upon, the question as to whether or not the ¡State had the right under its contract to require the claimant to make the proposed alterations.

The clause in the contract relating to alterations reads as' follows: “ It is mutually agreed that the State reserves the •right, until the final completion and acceptance of the- work, to make such additions to or changes in the plans and specifications covering the work as may he necessary, and no claim shall be made by the Contrae tor for -any loss of profits because of any such change or by reason of any variation between the. quantities of the approximate estimate and the quantities of the work as done.”

The changes made in the work were authorized by the express language of the contract. Daly v. Busk Tunnel Ry. Co., 129 Fed. Rep. 513. In interpreting the clause of the contract relating to alterations, the nature of the work must he considered, its connection with other contracts providing for the -construction of an extensive system of canals, and all the facts and circumstances connected with the work. Woodruff v. Woodruff, 52 N. Y. 52. The clause should not be construed as similar clauses are construed in contracts wherein all the details can he specified. In a contract of this magnitude the State cannot anticipate all of the natural conditions that may arise when the work is undertaken, or perfect its plans and specifications in every detail. Greater latitude must be allowed in contracts of the extent of this one, and the language is broad enough under the circumstances to permit of all necessary changes. The -changes which have been made appear to have been required for a complete and perfect construction of the work and come within the clause of the contract authorizing -alterations to he made by the State. Williams v. Chicago S. F. & C. Ry. Co., 54 S. W. Rep. 689; Smith v. Sanitary District of Chicago, 108 Ill. App. 69; Reiss v. Scherner, 87 id. 84; Kingsley v. City of Brooklyn, 78 N. Y. 200.

*483The word “ necessary,” as used in the clause in the contract relating to -alterations, must he construed in connection Avith the contract and the general improvement of which the contract formed a part. 'The work in process of construction by the State was a Barge canal improvement of great extent, of which the contract in this case formed a small section. The relation of this contract to the entire improvement is like that for a portion of a building to the construction of the entire building. A clause in a contract for only a portion of the entire improvement must be construed in the light of the whole work. Its construction is not to be limited to the particular contract in which the clause is to be found, since changes may be required because of the necessities of other parts of the work.

The word “ necessary ” is susceptible of various meanings and should not be construed in this case as meaning indispensably requisite. There are degrees of “ necessity.” A thing or purpose may be necessary, more necessary or indispensably necessary. The term sometimes means conducive to or needful or requisite for. It also means “ reasonably ” necessary. Changes are not reasonably necessary when they are extravagant, or wasteful of public funds, or- made without the exercise of a sound discretion, or arbitrarily made without the -exercise of any judgment, or fundamental, constituting a substantial change in the nature or cost of the work so as to amount to a new contract upon which the minds of the parties did not meet. What is a reasonable change anust be left to the courts in each instance. Chancellor Kent construed the term “ necessary,” as it was used in a statute authorizing the appropriation -of land for canal purposes. He said: “ The word 1necessary ’ does not mean absolute and indispensable, or that Avithout the use of the land, in the given case, the work could not possibly go on. Th-at would be the same -as extreme necessity. The Legislature used the word in a more reasonable -and popular sense. It is sufficient that the land used, and the materials taken from it are needful, and conducive to the object, and more convenient in the application, and less valuable, and the use of them less injurious to the owner, than any that might *484readily be selected.” Jerome v. Ross, 7 Johns. Ch. 340. Under this and other authorities, the word “ necessary,” as used in this contract, is not to be construed as meaning changes without which the completed work could not be made, but as meaning such changes as were needful, requisite or desirable, subject to the limitations above stated. See Words and Phrases.

In this case there.was no substantial change in the nature of the work or in its cost. All of the work called for by the alteration order was of a character upon which the claimants had submitted a unit price; so it cannot be said that any new work was introduced as occurs, for instance, where there is a change to some class of work upon which there is no unit price stipulated in the contract. The changes made by the alteration order were matters of detail when the amount and character of the work called for by the contract are considered and the small part that this contract plays among many others which will involve the expenditure by the State of many millions of dollars. The elimination of the puddle lining, the change from puddle lining to a cement lining, the change from the pine docking to cement docking and other changes called for by the alteration order do not constitute a change in the nature of the work, and there was no substantial change in the cost of the Avork. The proposed alterations increased rather than decreased the cost of the Avorlc.

These alterations Altere not fundamental, as that term is employed to limit the changes that can be made under the clause in contracts relating to alterations. There is no hard -and fast rule that can be laid doAvn to determine what is a fundamental change in a contract. The instances grade from unimportant changes in matters of detail to important alterations which constitute -a new contract. It is a matter of judicial opinion into which class a particular case falls. Ho amount of legal learning or experience can define the variations in statutory form, and the limitations must be left to the greater flexibility of the -common law.

In McMaster v. State, 108 N. Y. 542, two contracts wer-e let by the State to the same persons for the construction of certain buildings, one for furnishing stone and the other for *485cutting stone. The former contained no clause relating to changes, and the latter contained a clause reserving the right to make any change that should he deemed “ proper in the plans and specifications of said buildings.” The buildings were to be constructed of sandstone and, after some of them were furnished, the State changed the plans so that the remainder should be built of brick with sandstone trimmings, and later on some of the buildings were cut out entirely. The contractor leased a quarry and prepared to construct the buildings as specified of sandstone, and the court held that the change from sandstone to brick with sandstone trimmings and .the cutting out of some of the buildings constituted a breach of the contract by the State. In this case the change was purely arbitrary, and the court held that the changes made and the omission of buildings from the contract did not come within the reservation contained in the contract. The change was a substantial one, not only in the nature but in the cost of the work.

In National Contracting Co. v. Hudson R. R. Water Power Co., 192 N. Y. 209, the plaintiff had constructed a masonry dam; and, while the work was in progress, it was discovered that the bed rock on which the river section of the dam was to rest lay at a greater depth than was anticipated, which would result in a greater increase of the cost of construction. In view of this increased expense, the defendant sought to substitute an earth dam with a masonry core; and it was held that this change, in view of the fact that the plaintiff was to be paid in the bonds of the defendant, constituted a breach of the contract. The clause in the contract authorized the defendant to make “ alterations in the line, grade, plans, form, position, dimensions, or material of the work herein contemplated, or any part, thereof, either before or after the commencement, of the construction.” The proposed change required a large amount of earth embankment, which was not called for by the original contract and for which no price whatever was fixed, and reduced the masonry to a very large extent. The change sought to be made in this case was not necessary,'essential or needful, but one that was made to save expense; and an .important consideration in deciding *486the case was the fact that the contracting company was to be paid in the securities of the water power company.

In the case of Clark v. Mayor, 4 N. Y. 338, among other questions discussed by the ■ court is that of the power of the city to ‘make changes under a clause reserving the right to make alterations in the form or dimension of the work. Upon this branch of the case, Pratt, J., says: “ The original contract with the water commissioners, if that should be allowed to have any influence in the case, gave them the right at any time to change the form or dimensions or materials of the work. It is clear, under this provision, that the commissioners were authorized to make any change in the dimensions of the work which they might deem proper, although by such change the excavation of rock or other materials might be very materially reduced from the original estimate. Nor would the contractors be entitled to additional ■compensation, although such change might have the effect "to deprive them of the privilege of doing the easiest and therefore the most profitable part of the work. They took upon themselves this hazard by the terms of their contract.” P. 341.

In County of Cook v. Harms, 108 Ill. 151, the contract provided that, if “ any additions, changes or alterations ” should bemade, “such changes, additions or alterations” should not invalidate or impair the contract but should be paid for as extra work; but instead of proceeding under this clause the county board, after the work had commenced, rescinded its action approving the plans and provided and adopted new plans in their stead.

In Daly v. Busk Tunnel R. Co., 129 Fed. Rep. 513, one of the questions in the case was the right of the railway to enlarge the area or cross section of a tunnel, under a clause in the contract giving the company the right to make such “ changes in the amount, dimensions or character of the work to be done, as in the opinion of the chief engineer the interests of said work or of the company may require.” With reference to tliis language the court said: “ Indeed, we can scarcely conceive that a company engaged in constructing a tunnel nearly two miles in length through a high mountain, *487and being at the time ignorant of the character of the materials and the obstructions which it might encounter, would deliberately agree-that the size of the bore should not be increased even a few inches. It is customary, so far as we have observed, for companies which are engaged in the prosecution of such great enterprises as the one in hand to reserve a large power of control over the work, as well as the right to make such reasonable changes in the original plans for doing the same as the circumstances of the case may demand; hut, whether customary or not, the power in question w*as reserved by the tunnel company in the clearest language by the contract which it entered into with Keefe, the provision being that it should ‘ have the right to make such changes in the amount, dimensions or character of the work to be done as in the opinion of the chief engineer the interests of said work or of the company may require.’ ” P. 518.

Taking these and other cases as a guide, it cannot he said that the changes in this contract are so radical as to constitute a fundamental change. The alterations were of a character of work upon which the claimant hid, and unit prices were named in the contract for the class of work called for by the alterations; and it cannot he said that the alterations substantially changed the nature or cost of the work, constituted new work, or amounted to á new contract upon which the minds of the parties did not niéet. Under every rule laid down by the cases, the proposed alterations would not appear to come within the ban of judicial disapproval.

To give the term as used in this contract any other construction than that above indicated would seriously interfere with the execution of the contracts for the construction of the Barge canal. If the term is to he given the meaning of indispensably necessary, it might prevent the State from making even incidental changes in detail and would certainly interfere with many other changes that do not substantially affect the rights of the parties and yet are not absolutely required by the necessities of the work. The term must have a reasonable construction; and such a construction, would authorize the State to make the changes made by alteration order No. 7, some of which at least were absolutely necessary *488and others of which were" conducive if not essential to a more perfect piece of work.

This was one of the first contracts for" the construction of the Barge canal let by the State, and the plans for the entire canal had not been formulated. There was a good deal of delay from one cause or another during the performance of the contract. The site of the line of the canal was crossed by city streets -and by a railroad and was occupied by several city houses. Some litigation arose over the railroad crossing, and there was some delay in removing the houses. More than the usual changes in the contract were made and assented to by the contractor. An extension of time was given for the performance of the work. At the time of the submission of the last alteration order the greater part of the contract had been performed; and, in view of the fact that this alteration order increased rather than decreased the amount of work, it would seem that it was used as a pretext, for some reason not made clear to the court, for the refusal by the contractor to proceed with the work. It is also significant that no claim is made here for loss of profits on uncompleted work, but merely for delays and damages to work which has been performed, upon which the court does not pass but many of which seem to have been an afterthought when the filing of this claim was contemplated.

The interpretation here given to the contract is supported by the practical construction placed upon its terms by the parties themselves. Prior to this proposed alteration, six other alteration orders had been made respecting this contract under the clause permitting alterations to be made. Alteration Ho. 1 provided for the widening of the locks included in the contract, made pursuant to a statute passed subsequently to the making of the contract, which statute changed the width of the locks as provided for in the original Barge Canal Act. This alteration increased the cost of the contract by $82,015. Alteration order Ho. 2 provided for certain changes made necessary to afford a 'better support of the timber" attachment to the concrete retaining wall and substituted second class concrete for first class concrete. This alteration de*489creased the amount of the contract by $23,795. ■ Alteration order Ho. 3 provided for certain minor changes in the approaches to the Fourth street bridge in the village of Waterford and decreased the amount of the contract $35.24. Alteration Ho. 4 provided for enlarged abutments for the Sara-toga avenue crossing at Waterford and increased the contract by $1,562. Alteration Ho. 5 reduced the thickness of the concrete floor of lock Ho. 2 and excluded the concrete lintels over the lower end of locks 2 and 3 and provided hand-railings on the stairways of locks 2 and 3, decreasing the contract by $9,932. Alteration Ho. 6 provided for changes in the form of gate recesses, gate anchorages and operating machinery recesses, and also provided for cast iron quoin plates in locks Hos. 2 and 3, increasing the contract by $4,751. In all of these cases agreements were made between "the State and the claimant for the changes which aggregated $122,090.24.

After having accepted these alterations, thus placing its own interpretation upon the language of the clause in the contract relating to changes, claimant was unwilling to accept changes proposed in alteration order Ho. 7, though it increased the work by only $39,209.50 and did not substitute any new items or change the character of the work called for by the contract, claiming that it constituted a fundamental change in the contract, and declined to accept the alterations.

The interpretation placed iipon the contract by the parties has always been held to be a sound criterion by which to determine what the contract means. The courts have repeatedly held that “ there is no surer way to find out what the parties meant than to see what they have done.” Jacquin v. Boutard, 89 Hun, 437; affd., 157 N. Y. 686; Sattler v. Hallock, 160 id. 291; City of Chicago v. Sheldon, 9 Wall. 50; Topliff v. Topliff, 122 U. S. 121; Insurance Company v. Dutcher, 95 id. 273; Woolsey v. Funk, 121 N. Y. 87; Dodge v. Zimmer, 110 id. 48; Nicoll v. Sands, 131 id. 24; Seymour v. Warren, 179 id. 1; Winne v. Mehrbach, 130 App. Div. 329. In Sattler v. Hallock, supra, in construing a contract, the court said: “ We may resort to the surrounding facts and *490circumstances as they existed when it was made to aid us in its interpretation and also consider the practical construction which the parties have given it.” In City of Chicago v. Sheldon, supra, the court said: “ The practical interpretation of the parties themselves is entitled to great if not controlling influence * * * But in an executory contract and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the courts as the true one.”

Under the terms of the contract and the construction placed upon it by the parties, the claimant was guilty of a breach thereof in refusing to make the proposed alterations and is not in a position to enforce any claim that it has until the work has been completed and it has been determined whether, or not the act of the claimant has caused the State any additional expense. Barge Canal Statute (Laws of 1903, chap. 147), § 7.

The claim, therefore, should be dismissed.

'Claim dismissed.

This claim is for damages arising out of a contract for the construction of a portion of the Barge canal, pursuant to chapter 147 of the Laws of 1903 and the amendments thereto.

The contract was entered into between the claimant and the State April 3, 1905. The contract provided for the construction of about seven-eighths of a mile of the improved Champlain canal from the Mohawk river, near the village of Waterford, N. Y., and westerly therefrom, and was known as contract FTo. 2. Under this contract the claimant was to be paid for the performance of the work, according to the plans and specifications accompanying the contract, the sum of $852,330.

The claimant asks judgment against the State for $420,-375.36, and the claim contains twenty-four separate causes of action for delays claimed to have been caused by the State in failing to furnish plans for different parts of the work, and for failure to give entire possession of the land upon which the work was to he done, and for loss in rentals of machinery during such delays, and including an item of $69,-439.93, which was the ten per cent, of the estimated work *474completed which was retained by the State under the provisions of the contract until the work should be finally completed and approved by the State Engineer and the 'Superintendent of Public Works.

There is a large mass of testimony in this case covering the different causes of action set forth in claimant’s claim; and, before passing upon such testimony and the amount of damages which is claimed to be proven by such evidence, it is best to consider whether the claimant'is entitled to recover any damages or not.

During the progress of the work, several alterations to the plans and specifications were made by the State which increased the expense of the work and also the amount to be ■paid to the claimant, by about $35,88-0', which the claimant assented to.

On or' about the 14th day of April, 190-9, the State Engineer and Surveyor issued to the claimant an order, known as alteration ETo. 7. The claimant refused to comply with this order; -and, under section 12 of the contract, the contract with claimant was canceled, and the unfinished work relet in the manner provided by chapter 147 of- the Laws of 1903.

The claimant abandoned the contract, refusing to perform the work required by alteration ETo. 7, and files this claim for damages.

The question of the State’s liability depends upon the construction to be given to paragraph 7 of the contract. This paragraph provides as follows: “ It is mutually agreed that the State reserves the right, until the final completion and acceptance of the wrork, to make such additions to or changes in the plans and specifications covering the work as may be necessary, and the contract -shall not be invalidated thereby, and no claims shall be made by the contractor for any loss of profits because -of any such change, or by reason of any variation between the quantities of the approximate estimate and the quantities of the work as done.”

Ordinarily, -contracts mean just what they say; and, where parties execute a contract with full knowledge of its terms and conditions, they are bound thereby, even though it may result in a hardship for one of the parties.

*475I think^the fair interpretation of this clause of the contract to he this: That the State, in the construction of such an important work as the improved Barge canal involving an immense detail of plans and construction, knowing the fact that in practical experience in the progress of work it is often found that .some changes in the original plans of construction and in the details thereof would be for the better interest of the State, intended to and did reserve to the State the right to make such changes in the plans and specifications whenever it became necessary so to do.

I am aware that the courts hold that such reservation does not include the right to make such a radical and fundamental change in the plans and specifications as would compel the contractor to perform a different work, or in a substantially different manner from that which he had contracted to do; and the real question here is whether such alteration Ho. 7 was such a radical and fundamental change of contract Ho. 2 that the State had no right to make such order, and that ’ claimant was not required by law to continue the contract as changed by alteration Ho. 7.

Alteration Ho. 7 provided for the following changes in the construction of the work under contract Ho. 2:

(1) To change the plans for retaining wall at the head of lock Ho. 2 from station 182+63 to station 184.

(2) To extend the wall at the crossing of the present Champlain canal so as to form a junction with sides of same between station 184+55 and station 186+95.

(3) To substitute a concrete lining for the puddle lining in the bottom of the canal from the head of lock Ho. 2 to the west end of the present dock walls, station 182+63 to station 194+40.

(4) To substitute concrete retaining walls for piled dock-. ing on each side of the canal from the west end of the present dock wall to the lower end of lock Ho.- 3, station 3 84+14 to station 201+79.

(5) To eliminate the puddle lining on the sides and bottom of the canal from the west- end of the present dock wall to lower end of lock Ho. 3; station 184+40 to station 202+50.

*476(6) To raise the grade of by-pass channel around lock No. 3, station 200+18 to station 2'06+2‘5.

(7) To change the specifications for crushed stone to he -used in concrete.

These were the changes and alterations ordered by alteration No. 7.

Were the changes reasonable and necessary ?

The reasons why these alterations were to be made were stated in said order, issued to the claimant, as follows: For the first change proposed: “ The section of the Canal at the head of Lock No. 2 has been eroded by the flow of water in Cemetery Greek. This erosion has taken place along the line of the retaining walls on each side of the Canal. It will therefore be necessary to carry the foundation of these Avails to a lower level, -so that the base of the walls will rest" in undisturbed material. It is therefore -proposed to change the plans of the retaining walls from the head of Lock No. 2, Station 182+63 to Station 184.”

The reason for the second change was as follows: “At the crossing of the present Champlain Canal, the walls along the sides of the new Canal were not carried sufficiently far to form a good connection with bulkheads and masonry aa'uIIs of the old Canal. These walls have been extended slightly so as to remedy this defect.”

The reason given for the third change Avas as follows: “ The original plans provided for -a puddle lining one foot thick on the bottom of the Canal to prevent seepage of Aváter into the sand and gravel through Avhich the channel is excavated. A clay puddle lining is not thought to be satisfactory, as it would be subject to erosion by the currents stirred up by the propellers of boats, and a concrete lining nine inches thick has been substituted, extending from the head of Lock No. 2 to west end of the present dock wall, Station 182+63 to Station 194+40. Suitable concrete cut-off walls. are provided at the crossing of the present Champlain Canal and at the Avest end of the concrete lining.”

The reason for change No. 4 was as follows:

“ The -original plans provided for pile docking on each side of the channel from the end of the-retaining walls just *477west of Saratoga Avenue bridge, extending to the lower end of Lock Ho. 3. This pile docking is subject to decay and would require renewal every few years. It has been thought desirable to substitute concrete retaining walls on each side of the channel through this portion of the canal, thus providing permanent structures and making water-tight sides for the prism. These walls will extend from Station 184+15 to Station 201+79.”

'The reason for the fifth change was as follows:

“ The original plans provided for a clay puddle lining on the.sides and bottom of the Canal from the west end of the present dock walls to the lower end of Lock Ho. 3, Station 184+40 to Station 202+50. The Canal for this stretch is in deep excavation and the material in the bottom is compacted so that the leakage of water will be slight and a lining appears to 'be unnecessary. The clay puddle has therefore been eliminated.”

The reason given for alteration Ho. 6 was as follows:

■ “A by-pass channel is provided around Lock Ho. 3. The original plans required that this channel should be excavated to about the grade of the Canal below the Lock, which would make a wide deep channel that would always be full of water, adjacent to the Lock. It has been thought desirable to raise the grade of this by-pass so that the bottom will -be above the normal water level and to provide a small concrete retention dam at its lower end, where the water drops to a lower level.” The reasons given for alteration Ho. 7 were as follows: “ The specifications for crushed stone to he used in making concrete provide, that all the material which will pass through a one-half inch circular hole shall be eliminated. As it has been demonstrated that the best stone for making concrete is that in which the proportion of small particles is sufficient to reduce the voids to a minimum it is thought desirable to allow the use of all particles of stone greater than 1/8'th of an inch in diameter, and a change is made in the specifications to admit of this being done.”

The changes provided for in alteration Ho. 7 would increase the cost of the work to be done under the contract Ho. 2 and increase the amount to be paid to the claimant at *478the unit prices stated in the contract, in the sum of $39,20i9.50.

These were the alterations which claimant refused to perform hut insisted upon carrying out the original plans against the wishes of the State Engineer and Superintendent of Public Works for which reason the contract was canceled as before stated.,

I am of the opinion that these alterations, as specified in alteration Eo. 7, were not a radical and fundamental change of contract Eo. 2; that they were necessary changes which, arose during the progress of the work, and all of these changes were approved by the 'Superintendent of Public Works, by the ¡State Engineer and Surveyor, hy the Advisory Board and hy the Canal Board, and were filed in the office of the State Engineer under the office of the Canal Board and notice thereof properly given to the claimant.

I am of the opinion that these alterations were just such alterations as were intended to he covered hy the reservation in the State to make such alterations as provided by paragraph 7 of contract Eo. 2, and that it was the duty .of the claimant to perform the work according to the altered plans and specifications.

If the claimant had performed, as required by alteration Eo. 7, and the cost thereof had been in excess of the contract price for similar work, I believe it could have recovered against the State for such extra .cost of construction; but it was the claimant’s duty .to perform the contract as provided in alteration Eo. 7. -

There was some evidence given upon the trial by experts of the increased cost of laying concrete bottom in place of the puddle lining, and that such cost was far in excess of the contract price for concrete; but one of the contractors to whom the unfinished work was let testified that he was laying the concrete lining at a less cost per yard than that provided to be paid in contract Eo. 2.

The reason given by claimant on the trial for not complying with alteration Eo. 7 was the increased expense and cost of the work. I do not believe that this is a valid reason for *479non-perforunance, because the claimant would have its remedy therefor.

I am of the opinion that the claimant wrongfully refused to continue the work after alteration Eo. 7 was issued, and that such failure was a breach of the contract upon the part of the claimant.

After the cancellation of contract Eo. 2, the unfinished work was relet, and at the time of the trial of this action had not been completed.

The Canal Law provides that, in case of the cancellation of a contract entered into for construction of any portion of the Barge canal, the unfinished work may" be relet; and, if the expense of completing the unfinished work is in excess of that provided in the contract for the same work, such excess shall be paid by the original contractor.

There was no evidence given upon the trial of this action of the cost of the completion of the unfinished work which was relet, and it is impossible to state whether there will be any amount to be repaid by the contractor under this provision of the Canal Law and for which the State would have a counterclaim.

The amount of $69,439.93 which has been retained by the State, the claimant cannot at present recover, for the reason that the claimant agreed, in paragraph 30 of contract Eo. 2, that ten per cent, of all completed work should he retained by the State until the final completion of the work under the contract and until the work should be finally approved by the State Engineer and Surveyor and the Superintendent of Public Works.

I am of the opinion that this approval is a prerequisite for the final payment by the State, and of the claimant’s right to recover. The amount above mentioned is ten per cent, of the completed work which was retained by the State under the provisions of contract Eo. 2.

I am of the opinion that, upon the evidence given upon the trial of this action, the claimant cannot recover, and that the claim should be dismissed.

Murray, J., concurs.