It will be noted that the contract upon which recovery is sought in this case contains two clauses which must be construed together and neither one of which may be ignored. These clauses are as follows:
"The right is reserved to the city of Chicago, through its commissioner of public works, to make alterations in the plans or specifications for the work included herein. Should it become proper or necessary, however, in the execution of the work, to make any alterations which will increase the expense, said commissioner of public works shall report to the city council the nature of such alterations and his estimate of the amount by which the expense to the city should be thereby increased. The amount by which the contract price shall be increased in consequence of such alterations shall be determined by the city council."
"It is expressly understood and agreed that no payment shall be made to said party of the first part for any extra work or material or of any greater amount of money than is herein stipulated to be paid, unless some changes in or additions to the contract requiring additional outlay by said party of the first part shall first have been expressly authorized by the city council of the city of Chicago and ordered in writing by said commissioner of public work."
The first clause, which reserves the right to the city to make alterations, applies specifically to "plans or specifications for the work included herein." It cannot be applied to any other work than that included in the plans and specifications without construing something into the contract which is not written there. It then goes on to provide that *Page 629 in the event of alterations being necessary the matter should be reported to the city council, and the following clause provides quite definitely and specifically that no changes or additions shall impose further liability upon the city unless expressly authorized by the city council. The opinion of the majority seems to ignore the plain intent and meaning of these two clauses in the contract and proceeds to fix liability upon the city upon a basis of unit prices set forth in clause "O" of the contract. There are several reasons why this should not be done. In the first place, clause "O" is limited by its own terms to work covered by the specifications, and, as above pointed out, this work is not within the specifications. In the second place, the bill of particulars on file discloses that there were materials to the extent of $147,727.77 put into the Roosevelt road dam and the Thirteenth street dam which are not specifically covered by any sub-paragraph of clause "O." These items consist of steel sheeting, excavating and dredging. This construction is further refuted by the theory upon which the case was tried — i. e., a theory of the making of a separate and distinct ancillary contract, which it was clearly beyond the power of the commissioner of public works to make. This theory was carried not only through the trial but through the original opinion of this court filed herein prior to the petition for rehearing. The attorney for the plaintiff in the trial court in his opening statement announced the intention to recover upon a separate contract. It is also apparent from the method of book-keeping and settlement between the parties that a separate contract was intended, because none of this work was charged or paid for in connection with the main contract but all of it was itemized and set up in a separate and distinct account.
It is my opinion that a harassed and bewildered city council may well inquire of us as to where and in what language it may seek for safety for the tax-payers' money in the making of public contracts if provisions as plain *Page 630 and free from ambiguity as those in this contract are to be overlooked or so construed as to impose an added liability. In fact, it might well be feared that this opinion will incite some minds to exercise ingenuity so as to leave such possibilities open under future contracts.
Mr. JUSTICE DEYOUNG, also dissenting.