So far as the motion for nonsuit is concerned, a decisive answer to the point is, that no issue was presented upon the question by the pleadings. The allegation of the complaint that the work was performed in pursuance of the contract, is not denied in such a manner as to put the plaintiff upon proof of the fact.
If the provision about extra work stood alone, there might be some foundation for the objection; but the clause in regard to alterations and additions shows very clearly that the provision as to deviations and extra work was not intended as a limitation upon the power of the engineer, nor as a restriction upon the rights of the plaintiff in respect to work expressly required by the engineer for the benefit of the defendant.
OPINION By the Court:
1. The respondent cannot be permitted to point to the defects in the answer of the defendant, real or supposed, as precluding the defendant from objections, otherwise well made, to the admissibility of evidence offered at the trial. The case seems to have been tried upon the supposition that the answer presented a sufficient denial to the allegations of the complaint; and to raise the objection for the first time in this Court is too late. Substantial justice requires that such objections, if intended to be relied on, should be taken below, where an amendment may be made.
2. And we are of opinion that it was well objected by the defendant at the trial, that the plaintiff had failed to produce a written order by the engineer for the extra work in controversy. One of the stipulations of the contract is as follows: " No deviation from any of the provisions of this contract, specifications or drawings will be permitted, unless with the sanction in writing of the engineer, nor will any claim of extra work be allowed under any pretense, unless a written order for the same by the engineer can be produced."
We see nothing inequitable or unreasonable in such a stipulation. It was intended for the protection of the company against doubtful claims. The plaintiff was a party to it, and might, had he chosen to do so, have complied with it by demanding of the engineer the requisite order in writing before doing the work. The other clause in the contract, relied upon in argument by the respondent, to the effect that the engineer might direct alterations, additions, etc., is not opposed to this view. This authority of the engineer may be admitted, and is entirely consistent with the requirement that his definitive action shall be evidenced by writing.
It is claimed, too, that this requirement had been waived by the previous course of dealing between the parties to the contract, by which it appears, as it is alleged, that the defendant had theretofore paid for extra work done upon the mere verbal order of the engineer. But this suggestion seems to be wholly without support in the record.
Judgment and order denying a new trial reversed, and cause remanded for a new trial.