I dissent from that part of the majority opinion which holds that the subcontractor was entitled to recover more than the reasonable value of the services for item number 1. The contract, when read in the light of the subject-matter and the surrounding facts and circumstances, makes it clear that both parties understood that the prices specified by the graph were for a complete performance of the work. The subject-matter and the attendant facts and circumstances are material, not for the purpose of adding to or modifying the contract, but for the purpose of ascertaining the true intent of the parties from the language used. In order to perform the contract, it was necessary to assemble machinery and equipment at considerable expense. It was less expensive to remove the first material than it was that which would be removed before the contract was completed. The contract with the city was upon a unit basis and it could not be ascertained, until the work was performed, the exact number of cubic yards of earth that would be *Page 56 removed. The contract with the subcontractor was likewise upon a unit basis. It is not claimed that the full performance of the contract was prevented through any fault of Jahn Bressi, the contractors with the city and with whom the subcontract was made. As already stated, when the subcontract was made it was in the contemplation of the parties thereto that the subcontractor should complete all the excavation to be done for item number 1. The sliding scale of prices fixed by the graph was necessary, because it could not at the time the contract was entered into be determined the exact number of cubic yards of earth to be removed.
Except as herein otherwise indicated, I concur in the majority opinion. *Page 57