(dissenting).
It seems plain to me that the court below erred in ordering a verdict for the defendant. The phrase “cost of the undertaking” in the written contract cannot, as matter of law, fairly be construed, under the circumstances disclosed in this record, to mean the hypothetical cost to Nashua. The plaintiffs were employed to make plans and superintend the building of a new bridge; its actual cost was $218,520'; there is nothing to show that this was an excessive cost; the fair inference is that it was not.
The bridge might have been built by the city under one or under several contracts; if under several, their aggregate would have been the “cost of the undertaking” on which the engineer’s percentage should be reckoned. Whether any or all of such contractors made profits or losses, would have made no difference in the rights now in question. Their rights were measured by the agreed percentage on the sum of all the contracts made by the city, whatever the aetual cost of the job to the contractors. “Cost of the undertaking” means “contract cost of the undertaking” — whatever the number of contractors with the city, and whether more than one was adopted — by choice, or under compulsion, as in this ease.
The facts that the city wisely took a bond from the first contractor to secure the construction of the bridge at a price of only $173,767, that the first contractor failed to complete the job, and that therefore the second partial contract was completed at the expense of the surety company, are, in my view, irrelevant. The fair inference is that the first contractor’s failure to complete was due to a demonstrated inadequacy of the agreed contract price. Moreover, the city was a necessary party to the second contract.
The exact terms of the surety company’s obligation do not appear. There is no warrant in the record for the statement in the majority opinion that that obligation bound *53the surety company * ‘ * “to see that the original contract was carried out. In fulfillment of its obligation it no doubt employed the Rollins Company to do so. The city was not a necessary party to that contract.” I can conceive of no grounds on which the Rollins Company could enter upon city property and complete that bridge except a contract with the city. The record simply says that, after the first contractor defaulted, “the contract was given * '* * to e * the Rollins Corporation.” This fairly implies given by the city, and nothing else.
At most, the statements in the majority opinion are only guesswork; but cases should not be taken from the jury and verdicts ordered on guesswork. The actual cost of the bridge, under one or more contracts made with the city, was what the plaintiffs had in mind in making their accepted offer, and what the city fairly ought to have understood by the phrase “cost of the undertaking.”
It follows that this phrase should, as matter of law, have been construed as the plaintiffs construed it; or, at least, its meaning should have been submitted to the jury under the familiar doctrine stated by Judge Hand in Companhia De Navegacao Lloyd Brasileiro Co. v. C. G. Blake Co. (C. C. A.) 34 F.(2d) 616. See, also, Bank of New Zealand v. Simpson, [1900] A. C. 182. 2 Williston on Contracts, § 616, and cases cited. 13 C. J. page 532, and cases cited.
The other claim (for extras) it seems to me (with a possibly needed amendment of the pleadings) should also have been left to the jury. It is a fair — probably a necessary —inference that the default of the first contractor put extra work upon the superintending engineers, not contemplated by the original contract. While the evidence as to the amount of extra labor and expense was rather meager, it was not so plainly defective as to warrant the court in ordering a verdict for the defendant.