ON REHEARING.
Hart, J.(7) After due consideration of the petition of the appellants for rehearing, we have concluded that the contractors should be allowed $344.35 additional for clearing right-of-way. It is true the engineer testified that he did not order this additional right-of-way cleared, 'and Wills testified that he did not remember whether or not the engineer ordered him to clear it. Wills does say, however, that this additional right-of-way was cut with the knowledge of both the engineer and his assistant, who was on the ground when the work was done. He further stated that it was the understanding at the time that the levee would have to be extended over this ground and this was •subsequently done. So it will be seen that the additional clearing was actually done by the contractors- and that the levee district reaped the benefit of their labor. Under these circumstances it would be inequitable not to allow the amount; and it is ordered that the sum of $344.35 be deducted from the judgment against the contractors.
Counsel for appellants also insist that the contractors should be allowed other additional claims for excavation, namely: Stations 950-955, Plum Thiekett, 1,542.5 cubic yards, at 16 cents, $246.80; Stations 1155-1170, Tut-tle’s Ridge, 8,152.15 cubic yards, at 16 cents, $1,304.34; and Stations 1198-1214, Hog Donee, 6,371.92 cubic yards, at 16 cents, $1,019.50.
These three claims originated in the requirement of the levee inspector that the contractors dig the borrow pit of the levee four and one-half feet deeper at the three points above mentioned. The engineer required this to be done in order to bring the borrow pit of the levee to grade to serve the purpose of a drainage ditch. The contract provided that the work should be constructed by a flowing dredge, etc., so as to leave good drainage for the lands adjacent. The engineer construed this clause of the contract to mean that the borrow pit should be so constructed as to act as a drainage ditch for the adjacent lands, ;and, on that account, ordered the contractor to dig the borrow pit four and one-half feet deeper at the points mentioned.
This work was done nearly four years before suit was instituted and the contractor never put in any claim for the work until some time after he had filed his answer to the present suit. It is evident then that he acquiesced in the construction placed upon this clause of the contract by the engineer, and we are of the opinion that the chancellor correctly denied the claims now asked for by him.
The petition for rehearing as to these three claims will be denied.