I am in accord with opinion of Mr. Justice McDONALD, except that item No. 12, in the sum of $7,263.13, should not be disallowed.
The subcontract between the defendant, principal contractor, and the plaintiffs, subcontractors, provides that plaintiffs do the following work, quoting in part from schedule:
"No. 1 — Excavation — Earth."
And the contract also provides the consideration, quoting in part:
"For the work under item No. 1 of the foregoing schedule, .385c per cubic yard."
And it further provides:
"In respect to item No. 1, aforesaid, the subcontractors agree that said item shall include trenching for concrete slab; clearing off pavement; shouldering and ditching; removing all grubs; stumps and stones not included in foregoing item No. 6; trimming job for acceptance, and placing and removing detour road on section A, and removing all dirt, except that which is taken care of by other items and units."
In respect of work under item No. 1 of the schedule, item No. 12 of the bill of particulars, the trial judge held correctly:
"It is claimed by the defendant in this case that the several items of work covered by item number 12, *Page 619 including trenching for pavement, removing earth from pavement and trenching for stone and clay shoulders, were extras and should be so considered, and that, therefore, they were required to be done under the contract and included in the contract price. As far as I have been able to determine, I cannot find that any of these items included in number 12 can in any way be included as extras in plaintiffs' contract, and are, in my opinion, separate items of work which both parties must have understood at the time of signing the contract as required to be done to complete it. It is, therefore, my conclusion that the plaintiff is entitled to the yardage claimed in item number 12 at the price claimed, 38 1/2 cents per cubic yard, or a total of $7,263.13."
It follows plaintiff should have judgment in the sum of $16,523.62, and cause should be remanded for judgment accordingly. Defendant should have costs in this court.
POTTER, J., concurred with CLARK, C.J.