Scanlan

This is an action, brought by a contractor for the construction of a railway embankment to recover the contract price for the alleged cubic contents of the embankment. The defendant had paid to the plaintiff what it claimed to be the whole amount earned, except about $20, which it brought into court. The plaintiff had judgment for the balance claimed by him, and the defendant appeals.

The contract, among other things, contained the following provisions: “On embankments a percentage for shrinkage must be added to the fill, and said percentage will be as specified and marked out by the engineer [of the company], but will in no case exceed ten per cent of height of bank.” “Material will be measured in embankment, but no measure- , ment will be made of the material added for shrinkage, nor payment made for same.” Under this contract it was incumbent upon the plaintiff to prove the cubic contents of the material placed by him in the embankment, measured in the embankment, excluding the material added for shrinkage. The plaintiff produced as a witness an engineer, who testified that he had measured the embankment after its completion, and had found it to contain a certain number of…