West

Plaintiff charged that it entered into a contract with defendant for the doing of certain work on its railroad right of way. This work, in general terms, was to widen cuts and fills. The doing of it necessitated upon the part of the contractor the movement of materials of different character—earth, cemented material, and solid rock. These materials were measured by the cubic yard. The contractor was to receive different prices for the handling of the different materials. Thus the softer earth of the embankment was to be paid for at twenty cents, and the hardpan of the embankment at thirty-two cents per cubic yard. “Extra cement material” was to be paid for at sixty-two cents per cubic yard. Solid rock was to be paid for at seventy-five cents per cubic yard. In different causes of action plaintiff charged overpayments to its contractor on account of the work which he had performed. In some of these causes of action the charge of overpayment was based upon mutual mistake; in others upon fraud perpetrated upon plaintiff by the defendant and by the engineer employed by plaintiff to make estimates of the amount and character of the work done by defendant. The total amount thus overpaid…