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47 Ind. App. 466

Rebekah Assembly v. Pulse

Indiana Court of Appeals

Decided November 22, 1910

Indiana Court of Appeals · decided 1910-11-22

<p>1. Contracts. — Building.—Plans.—JHcotras.—Provisions Therefor.— Failure to Observe. — Complaint.—A complaint for extra services for building a passageway incident to the construction of a building, 103 feet longer than called for by the specifications, the contract providing that the location of the building should be determined by a committee and that no extras should, be charged unless agreed upon beforehand and expressed in writing and attached to the contract, is bad, where it shows that the committee’s choice of site necessitated the extra passageway and that no claim of a departure from the contract was made at the time, no written addition made to the contract and no claim made until after settlement according to the contract. Cleveland, etc., R. Co. v. Moore, 170 Ind. 528, and Norton v. Brown, 89 Ind. 333, distinguished, pp. 408, 475.</p> <p>2. Contracts. — Building.—“Mxtras.”—The word “extras,” as applied to a building contract, imports work arising outside and entirely independent of the contract in question — something not required for its performance, p. 474.</p>

Relies on City of Auburn v. State ex rel. First National Bank · Norton v. Browne

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1910-11-22

How this case has been cited

Cited by 20 later decisions — most recently March 1991

3 federal appellate · 17 state decisions

70191019201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition eor Rehearing.

Adams, J.

¶2— Appellees have filed a petition for a rehearing in this cause, supported by an able brief of their counsel. It is earnestly contended that the opinion of the court is erroneous, in that it does not correctly state the rule, as declared in the cases of Cleveland, etc., R. Co. v. Moore (1908), 170 Ind. 528, and Norton v. Browne (1883), 89 Ind. 333. "We have carefully examined these cases, and adhere to the construction set out in the original opinion.

¶3It is also insisted that the opinion is based upon the unwarranted assumption that the building of the additional 106 feet of covered passageway, for the cost of which this suit was brought, was but an incident in the erection of the new building, and within the terms of the original contract. It is admitted that the contract was for the erection of a new building, and connecting it with an old building by means of a covered passageway. The work was to be performed in accordance with the plans and specifications, and was to be completed within a certain time for the sum of $43,985. The drawings from which the bid was submitted showed a covered passageway ninety-seven feet in length, but the new building was so located that a passageway 203 feet in length was necessary to connect the buildings.

¶42. Appellees contend that the construction of the 106 feet of passageway, not shown on the drawings, was independent of the contract, and was not included in the contract price. Assuming this to be true, the assumption does not aid appellees. If this work was not included in the general contract, then it was extra work, which has been defined in the ease of Shields v. City of New York (1903), *47582 N. Y. Supp. 1020, 84 App. Div. 502, as “work arising outside and entirely independent of the contract — -something not required iu its performance.”

¶51. The contract in this case, however,•- anticipating the possibility of extra work, provided in express terms therefor. It was stipulated that no extras would he allowed appellees, unless ordered by the superintendent; that such extras must he in writing, indorsed on or attached to the contract, and the cost of such extras agreed-upon beforehand, and expressed in writing on or attached to the contract. It would he difficult for the parties to express their engagements in clearer or more definite terms.

¶6The complaint sets out a copy of the contract, but fails to aver that the cost of the extra work was agreed upon beforehand, and expressed in writing on or attached to the contract. Without such averment, no cause of action was stated.

¶7Rehearing denied.

Myers, C. J., not participating.
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