On Petition eor Rehearing.
Adams, J.— 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.
It 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.
2. 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.”
1. 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.
The 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.
Rehearing denied.
Myers, C. J., not participating.