I concur in the views expressed by the Vice-Chancellor in disposing of the case except in one particular. The decree below allowed compensation for the excess excavation on a quantummeruit basis, fixing $3.58 as the rate for each cubic yard. It is my view that that portion of the contract which reads: "Where an extra is requested and where not otherwise provided in the contract, the contractor shall submit a lump sum price to perform the work involved in such extra based upon an estimate of quantities and extent of work. If, in the opinion of the engineer, such lump sum price is in excess of the reasonable estimated cost, then the work may be performed by the contractor on a basis of furnishing labor, material, and insurance at cost, plus fifteen (15%) per cent. to cover profit, superintendence and general expense," is controlling. The contractor submitted a price of $4 per cubic yard for 1-c type of excavation and the engineer rejected it. In that situation, I think the contractor was relegated to the cost plus basis required by the contract and can see no justification for disregarding the contractual provision and permitting a recovery upon a quantum meruit basis.
For modification — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 13. *Page 322