The Union Station Act of February 28, 1903, 32 Stat. 909, c.
856, imposed larger liabilities on the railroad company for
necessary changes than did the earlier Act of February 22, 1901, 31
Stat. 767, c. 353, and provided for the payment of a sum of money
to the railroad company. The work contemplated by the later act
included material changes, whether within or outside of the right
of way.
Under the contract made by the plaintiff in this case with the
District of Columbia for the latter to make the necessary changes,
the District is entitled to be paid for all the work outside of, as
well as within, the railroad's right of way.
Independently of the statute, and on the evidence as to the
intention of the parties, the contract is properly construed as
including work outside of as well as within the right of way.
33 App.D.C. 377 affirmed.
The facts, which involve the construction of certain acts of
Congress for the erection of the Union Station and the elimination
of grade crossings in the District of Columbia, are stated in the
opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action of assumpsit by plaintiff in error in the Supreme
Page 223 U. S. 254
Court of the District of Columbia to recover the sum of
$7,172.97, claimed by it as the amount of unexpended balances of
three deposits made by it with the District to cover the cost of
certain work undertaken by the District for it.
The case was tried to a jury, which, under the instructions of
the court, returned a verdict for the plaintiff in the sum of
$1,089.79, with interest, upon which judgment was duly entered. The
judgment was affirmed by the Court of Appeals. We shall refer to
plaintiff in error as plaintiff and to the defendant in error as
the District
The controversy grows out of work required to be done by certain
acts of Congress for the elimination of grade crossings on the line
of the Baltimore & Potomac Railroad Company, in the City of
Washington, and requiring the railroad company to depress and
elevate its tracks, and to enable it to relocate parts of its
railroad therein, and for other purposes. 31 Stat. 767, c. 353. The
scheme of improvement was quite extensive, and the act described in
detail the changes to be made in the grades of streets in
connection with the change of the location of the railroad
company's tracks and station.
Section 9 of the act is the one with which we have most concern.
It provides as follows, omitting parts not essential to be
quoted:
"SEC. 9. That the entire cost and expenses of the revision,
changes, relocations, and improvements of and in said railroad, as
authorized and required by the preceding sections of this Act, and
of all structures connected therewith or incidental thereto, shall
be borne, paid, and defrayed in manner following, to-wit: the said
Baltimore & Potomac Railroad Company shall bear, pay, and
defray all cost and expense of the relocations, elevation and
depression of its tracks, within the limits of its right of way, as
are authorized and required by this Act. . . . All other costs,
expenses, and damages resulting from, incidental
Page 223 U. S. 255
to, or connected with, the revisions, changes, and improvements
in alignment and grades of said railroad, or the relocations
thereof by this Act required and authorized, and from changes in
the grades of the streets or the railroad . . . shall be borne,
paid, and defrayed in manner following, to-wit: fifty percentum
thereof by the United States and the remaining fifty percentum
thereof by the District of Columbia. . . . All work within the
limits of said railroad company's right of way . . . shall be done
by said railroad company to the satisfaction and approval of the
Commissioners of the District of Columbia, who are authorized to
exercise such supervision over the same as may be necessary to
secure the proper construction and maintenance of the said work.
And all work which is without the limits of the right of way . . .
shall be done by the District of Columbia."
There were quite radical modifications of the plan for the
railroad terminal, made by an act passed in 1903. 32 Stat. at L
909, c. 856. Among other things, it provided for the construction
of tunnels. It is, however, contended by plaintiff that the
distribution of the cost of the work, as provided in ยง 9 of the
prior act, was not changed. The District contends that the deposits
made by the plaintiff were for work to be done by the latter, and
that the work which was done by it, the District, was upon
construction neither contemplated nor authorized by the Act of
1901, but was embraced in the new location directed by the Act of
1903, and was imposed by the latter act upon the railroad company,
and was done by the plaintiff as agent of the railroad company.
In pursuance of the acts of Congress, the railroad company
prepared a plat of its proposed line, extending from Second street
and Virginia Avenue southwest to First Street and Massachusetts
Avenue Northeast. This embraced the change necessary to connect its
tracks with the
Page 223 U. S. 256
new Union Station. The plat shows the course of the tunnels in
question. The railroad company engaged plaintiff to construct the
tunnels, and plaintiff proposed to the District that the District
perform that portion of the work involved in changing and
relocating the sewers and water mains.
The following letter was written by the Engineer Commissioner of
the District to plaintiff:
"WASHINGTON,
July 22, 1903"
"The New York Continental Jewell Filtration Company, New York,
N.Y."
"GENTLEMEN: Referring to our oral conversation of July 16, in
which you requested that the sewer and water changes necessary on
account of the construction of the tunnel of the Pennsylvania R.
Company, this city, be made by this office, and the plat which you
left with me, I would state that the estimated cost of making the
changes in the sewers is $7,693, and of changes in water mains is
$488. Deposit slips for these amounts are herewith, and the
deposits should be made separately, and upon receipt of the
deposits the work will be done by this office. The Water Department
made some modifications of the plan suggested by you in the
drawings which you left, with the object of obtaining better
circulation, and the Sewer Division increases the size and slope of
the proposed new portion of sewer. I return your suggested
plan."
"Very respectfully, JOHN BIDDLE"
"
Major, Corps of Engineers, U.S.A."
"
Engineer Commissioner, D.C."
Subsequently letters were addressed to plaintiff containing
estimates of necessary changes in the water mains and sewers caused
by the construction of the tunnels, respectively, $488 and $7,693,
and stating that, if plaintiff wished the District to do the work,
it should deposit those amounts with the Collector of Taxes of the
District.
Page 223 U. S. 257
letters were dated, respectively, the 20th and 21st of July,
1903.
The plaintiff accepted the District's offer to make the changes
upon making the deposit indicated.
There was another change requested by plaintiff and undertaken
by the District, an estimate of which was furnished and a deposit
of the amount made by plaintiff.
On May 11, 1904, and after the completion of the work, the
plaintiff wrote a letter to the District in which it stated that it
had deposited with the Collector of Taxes of the District certain
amounts for sewer changes and water main changes "within the right
of way" at certain designated points, and asking for a statement of
the work and a return of the unexpended balances. Receiving no
reply, plaintiff addressed another letter to the District of the
same purport. There was other correspondence, which need not be
given, as it is agreed that plaintiff had deposited $7,693 to cover
the cost of changes in sewers and the sums of $488 and $600 to
cover the cost of changes in water mains; that there was expended
on sewers within the right of way the sum of $1,565.41, and on
water mains $42.62, total $1,608.03, which, being deducted from the
amount deposited by plaintiff, would leave an unexpended balance of
$7, 172.97, if plaintiff's contention be correct. If, on the other
hand, the contention of the District be correct, and plaintiff is
chargeable with costs of work done outside of the right of way,
there would be a balance returnable of only $1,089.79.
The contention of the plaintiff is, as we have seen, that the
railroad company was only required to defray the cost of work
within the limits of its right of way, and that plaintiff's
obligation is not greater, as it only undertook to do the work for
the railroad company. In other words, plaintiff contends that the
Acts of 1901 and 1903 are the test of the rights of the parties.
The District contends, on the other hand, that those acts do not
control the case.
Page 223 U. S. 258
The case made by the pleadings and the evidence, the District
insists, "is one of simple contract, composed of an offer or
request by the plaintiff to the defendant, which the defendant
accepted and performed." It is further urged by the District that,
if the Acts of 1901 and 1903 can be regarded as pertinent, all of
the parties, the District, the plaintiff, and the railroad,
construed them in accordance with the contention of the District.
It is urged further that the Act of 1901 contained no reference to
changes in water mains and tunnels, and that the Act of 1903
"imposed upon the railroad the obligation to do the entire work,
thus modifying the former act, and, in return, provided for the
payment of a large sum of money to the railroad."
It is very certain that the Act of 1903 introduced new features
into the scheme provided for by the Act of 1901, and gives support
to the contention of the District. It was testified by the
Assistant Engineer of the District as follows:
"The tunnel was not contemplated in the Act of 1901. It was
built pursuant to the Act of 1903, and takes the place of the
connection that would have been made to the Sixth Street station,
had that station remained as contemplated by the Act of 1901. There
was no tunnel at this point contemplated by the Act of 1901."
But, without dwelling further upon this contention, we shall
pass to the other contention of the District. The declaration in
the case alleges that plaintiff,
"acting in that behalf as the agent of the Philadelphia,
Baltimore & Washington Railroad Company, was engaged in
constructing for said company certain tunnels at and about the
intersection of New Jersey Avenue and D Street,"
which the railroad company was required to construct under the
acts of Congress of 1901 and 1903.
It is alleged that the construction of the tunnels made
necessary the change in the location of certain sewers and water
mains. That estimates were made by the District
Page 223 U. S. 259
and notice given thereof to plaintiff, conveying an offer by it
to make the changes, provided plaintiff would deposit the cost
thereof with the District. That the plaintiff did so upon the
condition that the District would use so much of the deposit as
would be necessary to make the changes "which the railroad company
was required to perform or pay for," and return whatever balances
there might be to plaintiff. The balances due are stated.
Issue was joined on the declaration by the District, and it set
up, besides, affirmative matter of defense.
It will be observed that a contract between the plaintiff and
the District is alleged, and we are to inquire whether it was
established or whether some other contract was established. The
facts show that the company approached the commissioners for the
purpose of having the District undertake the work, as will be seen
by the letter of July 22, 1903, which we have quoted above,
submitting a plan of the work, which was changed somewhat by the
commissioners. The letter was addressed to plaintiff, and contained
these significant words: "The estimated cost to you for making the
necessary charges in sewers, caused by the construction of tunnel
N.J. Ave. and D Street, S.E. is $7,693." In the other letters, the
same words are used as to water mains, the expense being stated at
$488 and $600.
Plaintiff contends that, under the circumstances, those words
were sufficient to cause it
"to believe that the District understood that the 'necessary
changes' would involve costs to be defrayed by the government, or
at any rate, some party other than the company."
But this could only be on the supposition that the Act of 1901
controlled, and was thought by the District to control. The
District thought otherwise -- thought the Act of 1903 controlled,
and required the work to be done at the expense of the railroad
company, and therefore by its agent, the plaintiff; and, granting
this position could be disputed,
Page 223 U. S. 260
it nevertheless gives meaning to the language it used when
addressing plaintiff as undertaking the work and all of the work,
that outside and that within, of the railroad's right of way. And
we do not see how plaintiff could have understood otherwise. If the
words did not necessarily, of themselves, point to plaintiff as the
party to defray the expense, the amount of the deposit required
indicated that it was to cover the work outside of the right of
way. The estimate of costs and deposits required amounted to
$8,781, and yet it is admitted that the cost of the work within the
right of way or space covered by the tunnels was only $1,608.03.
The difference is too great to have been overlooked or its
importance and meaning misunderstood. It is attempted to be
explained, but inadequately. The necessity of the work was seen by
plaintiff's engineer in charge, and he also saw the work going on
daily outside of the right of way. He explained as follows:
"We knew that the estimated amount was excessive for that which
was solely within the right of way, but we considered that we were
protected in the matter by the law. I did not know the cost of
taking out 64 feet of sewer and putting it back. I had no estimate
on it. I consider $7,693 for taking out 64 feet of sewer an
excessive amount. I did not know that it could be done within
$1,600. I made no estimate at all. I know that the total estimate
submitted was largely in excess of the cost of work required within
the right of way. . . . It was largely in excess, 50 percent or
more, but I only looked at it in a general way. I did not know it
was 80 percent more, and did not figure out the actual or
approximate cost."
We repeat, the explanation is inadequate. An excess of more than
fifty percent in an estimate of the work within the right of way
necessarily pointed to some other work, and plaintiff was called
upon then to make objection if it had any. If it had objected, the
District might have
Page 223 U. S. 261
refused to deal with it, and insisted upon the responsibility of
the railroad company. It is now in a different situation. This
record does not show that the railroad company ever disputed its
responsibility. Indeed, there is evidence which makes the other
way.
Judgment affirmed.