I concur with the conclusion of the learned trial justice, that the city is liable to the plaintiff.
The claim of Moore for bailing and draining, and that was the only item really in controversy between him and the city, was dismissed, “ but not upon the merits.” It is that part of the judgment which I think constitutes error.
Specifications had been prepared for the improvement of Onondaga creek,. The item of bailing and draining was one of those contained in these specifications, and, in brief,, this term, denoted the *176excavating of a ditch or channel'in the bed of.the creek to carry off the water, so that the men engaged in the improvement could carry on the work, and according to the specifications it included “ the necessary machinery, labor, power, 'materials, coffer-dams or other' appliances to'so far remove all water, ice or snow-from the work as to enable it to bcthoroughly done and inspected!”
Kelley’s bid for this work was $10,000. In the notice to the contractors it was estimated that there would be 43,500 cubic yards of excavation. When the work was completed the actual amount of work excavated was about twice the amount estimated, and'the contractor, Moore, seeks to' recover for this increase.
' The notice to contractors referred to contained this provision : “ The .following estimate of quantities is to be considered only as approximate, and bidders are required to" form their own judgment of the quantities and • character of the work by personal examination of the ground where it is b> be done, and of the specifications and drawings relating to it, or by such other means as they may prefer.” ' ■
The counsel for the city claims that the bid. was a lump sum for doing all'the bailing and draining, whatever might be the quantity, and that the provision quoted precludes any recovery by the contractor for the extra amount of work imposed by the additional excavation. That construction might prevail for any slight variation either increasing Or .lessening the quantity of labor performed, but if there was a substantial difference in the amount done it is to be considered in fixing the amount of compensation. ¡
Clause “F” of the contract reads as. follows: “-It is further / agreed that the said Engineer may make alterations in the line and grade, and the Commissioner in place, form, position, dimensión or material of the work herein contemplated Or any part thereof, either before or after the commencement of construction. If such alterations diminish the quantity of work to.be done they shall not constitute a claim for damages or for anticipated profits on the work that may be dispensed with; if they increase the amount of such work, such increase shall be paid • .for according to the quantity actually done, and at the price established for such work under .the contract; or in case theré is no price established it shall be paid for at its actual reasonable cost as determined by the Commissioner, *177plus fifteen per cent of said cost.” The work is fairly within the scope of this provision.
The answer served by the defendant Moore makes no reference to any claim for bailing and draining.. There is a count for extra work, but apparently it does not pertain to this demand, because the averment is upon a claim recognized by the city by part payment. Upon the trial the defendant did not proceed upon the assumption that he was entitled to recover the reasonable cost incurred by him in consequence of the increased excavation. His claim was that the item for bailing and draining was for a certain price per yard, and, as the amount excavated increased, there was a proportional addition to the compensation.
We think this is not a reasonable deduction. There was no proof as to the added cost, and before any recovery can be had there should be clear proof that there was a substantial extension to the labor performed due to the largely increased excavation.
, Upon the trial the defendant Moore proved by experts that where a bid of a lump sum is made for bailing and draining, “ the amount and quantities are reasonably approximate; ” and that the compensation varied with the change in the quantity of earth excavated from the estimate. This evidence was. objected to, but no question was raised that the 'claim was not within the answer, or that the measure of damages sought to be adopted was improper. The court dismissed the claim, but not upon the merits. The trial judge held very properly that there was ■ no proof justifying the conclusion that the extra expense of the work was regulated ratably . by the enlargement of the quantity of earth removed. If the defendant city had objected on the ground that the claim was not covered by the answer or that the proper measure of damages was not adopted, an amendment might have been allowed and the claimant might have proceeded according to section “F” of the contract.
We think the claim should not have been dismissed. The note and assignment held by the bank are to be delivered to the city upon payment of the amount due the bank. Quite a large sum has been found due to Moore which can be applied toward the'payment of the note by the city, leaving a considerable balance unpaid. The *178controversy between him and the city over the'bailing and draining item can be readily determined in this action without much expense, and if any sum is found due Moore the two claims can be adjusted and judgment awarded for the difference.
The appellant Moore appealed from that part of the judgment which directed the bank to assign and deliver to the city the note against Mm and any collateral held as security for the .note. This is a very proper direction. The city is in .the situation of a surety for Moore and is subrogated to all the rights of the bank upon paying, Moore’s debt.
The judgment in favor of the plaintiff should be affirmed, with costs. Judgment dismissing, the claim of the defendant Moore against the city for bailing and draining should be reversed and a new trial ordered, but without costs to either party, as the defendant Moore only succeeds in part, with leave to him to apply for an amendment to his answer, if he is so advised. ■
Robson, J., concurred.