Richmond D. Co. v. Atchison Etc. Ry. Co.

The action is for damages arising out of a written contract of date January 31, 1910, between defendant as first party, plaintiff as second party, and East Shore & Suburban Railway Company, third party. This latter company is not made a party to the action.

Defendant is the owner of a tract of land situated in the city of Richmond, Contra Costa County, and was desirous of having “said land filled in as herein (by the contract) provided. ’ ’ The area to be filled is particularly described in the contract; the cubic measurement of said area as stated in the contract was “estimated at approximately two hundred and twenty thousand yards,” and “the second party agrees to fill, at the rate of fifteen cents per cubic yard, within the area described.” A map was attached to the contract as part thereof showing the area to be filled and other facts.

Defendant was to pay plaintiff on “the 15th day of each month, for the work done during the preceding month, seventy-five per cent of the amount estimated by the engineer of the first party to have been earned by the second party during such preceding month and the first party will retain the remaining twenty-five per cent of all monthly…