dissenting The referees have reported due to the plaintiff the sum of $50,959,06. Of this sum $4,159,06 is an undisputed balance of account for work done, as to which I see no reason why the plaintiffs are not entitled to recover. As to the remaining $46,800 the report stands upon a different ground, which requires a careful examination. It is not very apparent, either from the case or the reports, by what calculation the referees arrived at this amount. In their special report they state that their conclusion is based upon “ the following calculation and items but no very intelligible calculation or items are set forth, by which we can ascertain how far the report is founded upon work done, or upon damages for breach of contract. They say “ that by the contract between the parties the price of the rock excavation was fixed at one dollar per cubic yard, which we have been governed by, taking the whole quantity originally required to be excavated together; that we have ascertained from the proof that the plaintiffs have been *296stopped by the defendants in the performance of the entire work. And we have also ascertained the relative value of the quantity excavated and of the quantity remaining not excavated, and on comparing such relative value we find that there is due from the defendants to the plaintiffs for the portion excavated $■46,800.” This specification is to nay mind any thing but clear and specific. If the referees had stated the amount of rock excavation which they found to have been done by the plaintiffs, and its value, as well as the amount not done and its value, we might see how far their comparison of such relative value would legally lead to the result. But as it is, we must ascertain from the facts of the case whether any such result could be arrived at, consistent with the rules of law.
The case shows that 66,000 cubic yards of rock excavation were completed, for which the plaintiffs were paid at the rate of one dollar per yard. If, therefore, the report is for work done, it must be founded upon an estimate of a higher price for that work per yard, The proof by the plaintiff’s witnesses shows that the rock excavation costs the plaintiff from $1,10 to $4,10 per yard. The same proof also shows that the residue of the 150,000 yards of rock excavation which the plaintiff's claim was originally intended to be done would, the most oí it, have been done at an expense of about 35 cents per yard. It also appears that a computation founded upon the real value of the work done, without regard to the contract price, or upon the loss of profit arising from the non-performance of the remaining 84,000 yards, would produce an amount nearly corresponding with the amount found by the referees. It becomes necessary, therefore, to inquire whether a recovery upon either of these grounds can stand.
1. It is quite clear that the plaintiffs cannot recover in this action the damages resulting from the non-performance of the contract, by the defendants’ preventing them from excavating the whole amount of 150,000 cubic yards of rock. Although there is a special count claiming such damages, it cannot be seriously contended, that a contract under seal of the plaintiffs *297and one of the water commissioners, can be the basis of a special count in assumpsit against the corporation.
2. The more important question is, whether the recovery can be had on the common counts. It is an undoubted rule that where a special agreement has been performed, an action for work will lie upon the quantum meruit, and the contract need only be referred to for the purpose of regulating the price. (Dubois v. The Delaware and Hudson Canal Co. 4 Wend. 285. 12 Id. 334. 15 Id. 87.) In case also of the rescinding the contract by the defendant, the plaintiff may disregard it and recover on the common counts. In all s,uch cases the quantum meruit count is sufficient. Now in this case the contract is either performed or rescinded by the defendants’ preventing the plaintiffs from finishing the work. In either case the plaintiffs are entitled to recover if their proof is sufficient. On the ground of performance of the contract, the plaintiffs must fail; because the contract must govern as to price; and the contract prices have been paid.
Let us next see how the case would stand assuming that the stoppage of the work by the defendants amounts to a rescission of the agreement. In that case the plaintiffs could, at most, but disregard the contract and go purely for the quantum meruit. This difficulty then arises: the plaintiffs claim to recover according to the contract prices for all the work excepting the rock excavation, and as to that, seek to recover from $1,20 to $4 per cubic yard, while the contract gives but $1. I see no principle which will permit this. It seems to me that if the plaintiff elects to consider the contract rescinded, he must treat it as rescinded in toto. He must therefore rely upon his proof of the value of all his work. He cannot be permitted to avail himself of the contract and receive its prices for most of the work, and select a single item, which happens to have been unexpectedly expensive, and claim to recover the full value for that particular portion of the work. It may very well be that the contract prices, as a whole, afford a fair compensation — as much or more than the true value of the services could be proved; and yet that, in some branches of the labor, the con*298tract price would be quite inadequate. There must necessarily be some degree of uncertainty in all estimates of such kinds of work. On some, the contractors will realize large profits, and in others, sustain heavy losses. But it may be laid down as a safe principle of law, that they must adhere to the contract throughout, or else abandon it entirely. This seems to me to be an insuperable objection to the recovery of the $46,800 for labor performed.
Hitherto it has been assumed that the contract entitled the plaintiffs to excavate 150,000 cubic yards of rock, and that the defendants improperly stopped them, when less than half that amount had been completed. But after the most careful examination, I am unable to give that interpretation to the agreement between the plaintiffs and the water commissioners. By the terms of the contract itself the plaintiffs agree to perform all the labor and furnish all the materials necessary to construct and finish, in every respect, in the most substantial and workmanlike manner, section pinety-six of the Croton aqueduct, including the receiving reservoir, according to the specification thereto annexed. The specification provides that the receiving reservoir should be divided into two sections, the northern and southern. “ The northern section to have twenty feet depth of water, and the southern twenty-five feet depth of water.” Then follows the estimate of work entitled “ approximate quantities of the principal items on section No. 96, including receiving reservoir,” which was exhibited to all contractors who wished to examine it. In this estimate the quantity of rock excavation is put down at 150,000 cubic yards.
The fair construction of the contract, ip connection with the specifications and estimates, is this; the plaintiffs contracted to do the job, having been furnished with a general outline of the nature and extent of the work, and an estimate of the several kinds and qualities of work, but neither party understood that any specific or certain amount of any of the kinds of work was to be done or furnished. Neither party was bound by the estimates, unless those quantities were necessary in the progress of the work. From the nature of the undertaking it was im*299possible to foresee bow much of the excavation would be rock, and how much earth. That such must have been the understanding of the parties is obvious from the amount of work doné concerning which there is no controversy, compared with the estimates. Thus the amount of other kinds Of excavation was estimated at 400,000 cubic yards — the quantity performed was 287,650. Estimatéd amount of embankment 500,000 cubic yards — performed, 249,860. Protection wall estimate 38,000 cubic yards — performed 29,627. And so of the rock excavátítí'h estimate, 150,000 cubic yards — performed 66,026. '
There is moreover a paragraph in the contract itself which would seem to set this matter at rest. It is as follows: “ And the said contractors hereby agree that they will perform the work under this contract as above specified; but any alterations in the form, dimensions or materials of said work, which may be directed in writing by the said commissioners or the said engineer, shall be made by said contractors as directed and required; and to prevent all disputes, it is hereby agreed, that the said engineer shall in all cases determine the amount or quantity of the several kinds of work which are to be paid for under this contract, and the amount of compensation at the rates herein provided for; and also that the said engineer shall in all cases decide every question which can or may arise relating to the execution of this contract, on the part of the said contractors, and his estimate and decision shall be final and Conclusive.” As I understand this provision, the parties, at the time of contracting, contemplated the possibility of a change in the form or dimensions of the work, and the plaintiffs agreed to make the same as required; and to bind t^femselves more Effectually; they agreed that the engineer41 should^ in all cases, determine the amount or quantity of the several kinds if work which were to be paid for under the contract-. That which was thus contemplated has taken place. The commissioners have changed the form and dimension^ of the work, by not excavating to so great a depth as originally designed. The engineer has determined the amount of rock excavation to be paid for under the contract, to be 66,000 cubic yards. For this *300the plaintiffs have received $66.000, the price fixed by the contract as well as by the determination of the engineer. I am wholly unable to see how they can recover any thing more. I am not aware of any principle which will permit them to recover more than the contract price for the work actually done, nor to recover any thing for the work not done, and which they claim was intended to be done.
It seems to me that there has been no breach or rescission of this, contract, but that it has been performed by the respective parties, according to its true intent and meaning. Some of the exceptions to the decision of the referees, in admitting testimony, I think are well taken, particularly those which relate to the admission of the reports of the engineer and water commissioners. But the view I .have taken óf the main question renders it unnecessary to examine these more minutely.
My conclusion is, that this report cannot stand as to the $46,800. (1.) Because no recovery can be had for the rock excavation beyond the contract price of one dollar per cubic yard, for the work done. (2.) Because, admitting the contract to have been abandoned or rescinded, the proof will not sustain the count on a quantum meruit; as it is confined to the value of the rock excavation, and does not extend to the value of the whole work. (3.) The action will not lie against the defendants on the special count for breach of contract, because it was fiot made by them, but was made by one of the water commissioners, under seal.
Report of referees confirmed-.
