Ereño v. People of Porto Rico.

did not propose to consider any proposition involving additional cost for the building. That plaintiff left, returning again in a few days, advancing the same proposition, that he would perform the work entirely of limestone without extra compensation. That this proposition was submitted to the commissioner, and, as it removed all difficulty in the way of advancing and finishing the work, and was satisfactory to the contractor, it was accepted. That later in the year plaintiff again appeared for permission to use brick from the second story level to the roof. That this proposition was rejected, as such a combination was unknown to the building world. That witness did all the preliminary work of plan making and estimating, and that the cost of the building, after full investigation, was estimated at $16,000. That witness has no recollection of any other conversation at the time of signing the contract, save plaintiff's effort to raise the price $500, but this the commissioner would not agree to. Witness gives a lot of evidence as to the possibility of procuring brick at other places, which we regard as immaterial in the view we take of the case. He further testifies that the contract limit was three months to complete the job, and he is sure that, under all the circumstances, an extension of three months additional ought to have been sufficient, but that it took a great deal longer, and that he was in receipt of reports from his inspectors on the ground from time to time, that the contractor failed to furnish materials and the work was being delayed. That the stonecutters could have done a great deal more work if stone had been made available to them, without additional cost, and that this would have resulted in more stone being set and would have enabled the employment of many more men to complete the job quickly and economically. That the woodwork was also delayed, and that the contractor certainly lost a lot of money by these de

Ereño v. People of Porto Rico.

lays in the stonework and woodwork, occasioned by his own negligence, having to keep many men on salary, maintain his insurance, pay traveling expenses, etc., during all this time.

From the foregoing rather lengthy record and statement of the case, it can be seen that there was a deliberate, specific, binding contract entered into by plaintiff for the construction of this building for the price of $16,000. It does not require much effort to see the real facts in the case, and to understand exactly how the controversy arose. Dr. Brumbaugh and Mr. Post no doubt did do a good deal of talking to induce plaintiff to take this contract, but it is manifest that neither one of them ever promised to pay him for the extra cost of the change from brick to stone. All that Dr. Brumbaugh ever said to him about it, even according to plaintiff's own statement, was that he should not lose any money; but that was before the contract was made. The elementary proposition of law that all bargains, contentions, and agreements that result in a writing between the parties, merge in the writing, and that parol evidence is not accepted thereafter to vary the written instrument save under well-known rules, need not be discussed here.

Were this an action to cancel or reform the contract, or a defense against an action for a breach of it, plaintiff would be in a better position than he is. If he found, on going to Fajardo, that he had been deceived as to the quantity of material available, he could have refused to proceed with the work until a different contract had been entered into. Ricker v. Sanitary District, 89 Fed. 251. The law will not permit him to continue the work under a contract, and, by a mere unilateral claim that he should have more compensation, compel the island to pay an increased price for the work. Without positive evidence that a new contract, for a proper consideration, has been entered into

Ereño v. People of Porto Rico.

and the old one waived or modified, courts ought not lightly to force owners to pay an additional sum in order to obtain the sort of structure or work they are entitled to. Such a practice would encourage breach of contract and a breach of faith. The island received no extra work in this case. It only received what is claimed to be better and more expensive material than the contract itself called for, and the change in the material, the evidence shows, was made at the request and for the convenience of the contractor.

This plaintiff well knew that the commissioner, Dr. Brumbaugh, was the only person who could make or modify these building contracts at that time. He had erected several structures for the island. No matter how much he talked to Mr. Post, the architect, it is in evidence that when anything definite was to be done or any agreement made, Mr. Post and plaintiff always went to the commissioner, Dr. Brumbaugh, to see whether it would be agreed to. It was the duty of plaintiff to know what Post's authority was, and to know that under his contract he could not demand extra compensation save on a modification of the contract in writing, according to the extract copied supra, or on a direct promise to pay, properly acquisced in. Bowe v. United States, 42 Fed. 778. Individuals as well as courts must take notice of the extent of authority conferred by law upon a person acting in an official capacity. Whiteside v. United States, 93 U. S. 247, 23 L. ed. 882; Hawkins v. United States, 96 U. S. 689, 24 L. ed. 607. The only person who could, it seems, under the law, have entered into this alleged modification of the old contract or agreed to the alleged new one, was the commissioner, and he, as well as Mr. Post, emphatically denied it. It is regrettable if plaintiff in fact lost money on this building, but even then, there is evidence to show that it

Ereño v. People of Porto Rico.

was probably occasioned largely by his own negligence in the con-duct of the work. He is an intelligent man, of wide experience as a contractor and builder. He entered into this contract knowingly. Such change as was made in it was made, as admitted, at his own request; and as all persons who could bind the government deny any promise of additional compensation, the burden of proving it being on him, we have no hesitation under the evidence in finding that he has failed in that regard. In Sharpe v. San Paulo R. Co. L. R. 8 Ch. 607, cited in note on p. 313 of Wait's Engineering and Architectural Jurisprudence, it was held that work ordered or directed by the engineer in charge must not be such work as can be included in the contract. In that case the engineer had blundered and made a change requiring a great deal more excavation at a certain point in a railroad, promising the contractor to make up for it by reducing work in another place, which he failed to do. The court held the contractor could not recover, even though the company did in some vague way ratify or did not dissent to the change. The railroad could have been built as planned and contracted for, and the court stated the law would not permit the contract to be varied in this way.

This same work of Mr. Wait cites many cases in support of the doctrine that the person in charge of the work cannot order extra work verbally when the contract itself requires the order to be in writing, and the court goes so far as to say that the contractor in such case cannot recover from the company for such extra work, either in a court of law or a court of equity. Citing Woodruff v. Rochester & P. R. Co. 108 N. Y. 39, 14 N. E. 832, and other cases. And again, in a note to § 554, he cites, in support of the same position, Bonesteel v. New York, 22 N. Y.

Ereño v. People of Porto Rico.

163; Rens v. Grand Rapids, 73 Mich. 237, 41 N. W. 263; Dillon v. Syracuse, 29 N. Y. S. R. 912, 9 N. Y. Supp. 98.

When alterations and changes are merely assented to and there is no agreement as to value and cost, the presumption is that no increased cost was contemplated. Wait, supra, § 566, and cases cited; Badders v. Davis, 88 Ala. 367, 6 So. 834; Bryant v. Stilwell, 24 Pa. 314; Jones v. Woodbury, 11 B. Mon. 167; District of Columbia v. Gallaher, 124 U. S. 505, 31 L. ed. 526, 8 Sup. Ct. Rep. 585.

The mere circumstance of the owner knowing that the extra work was doing, and not objecting to it, does not raise a contract on his part to pay plaintiff for it. Belt v. Cook, 3 Cranch, C. C. 666, Fed. Cas. No. 1,282.

Some considerable evidence was introduced with reference to the final settlement between the parties, and the acceptance by plaintiff of the $1,090.86 and giving a receipt in full. We do not think much importance can be attached to this fact, because it is well settled that the circumstances concerning the giving of a receipt in full can be shown in an action between the parties regarding the subject-matter for which it was given, and it can be shown that it was a mistake, if in fact it was. The taking of a balance and giving such a receipt is of course evidence for the jury that it was intended as accord and satisfaction. Pray v. United States, 106 U. S. 594, 27 L. ed. 265, 1 Sup. Ct. Rep. 483; Tanner v. Merrill, 108 Mich. 58, 31 L.R.A. 171, 62 Am. St. Rep. 687, 65 N. W. 664; Fire Ins. Asso. v. Wickham, 141 U. S. 564, 35 L. ed. 860, 12 Sup. Ct. Rep. 84.

For the reasons here given, the court finds the issues for the defendant, with costs, and a judgment to that effect will be en tered.