This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
22 Donovan v. Driscoll, 116 la. 339; 90 X. W. 60.
1 Fulton County v. Gibson, 158 Ind. 471; 63 N. E. 982; Evans v. McConnell, 99 la. 326; 63 N. W. 570; 68 N. W. 790; Escott v. White, 10 Bush. (Ky.) 169; Norwood v. Lathrop, 178 Mass. 208; 59 N. E. 650; Pfeiffer v. Michelsen, 112 Mich. 614; 71 N. W. 156; McEwen v. Loucheim, 115 N. C. 348: 20 S. E. 519; Trow v. Forsyth, 70 Vt. 498; 41 Atl. 501; Isham v. Parker, 3 Wash. 755; 29 Pac. 835.
2 Fulton County v. Gibson, 158 Ind. 471; 63 N. E. 982.
3 Norwood v. Lathrop, 178 Mass. 208; 59 N. E 650.
4 McEwen v. Loucheim, 115 N. C. 348; 20 S. E. 519.
5 Pfeiffer v. Michelsen, 112 Mich. 614; 71 N. W. 156; Cates v. Gilmer (Tenn. Ch. App.), 48 S. W. 280.
6 Trow v. Forsyth, 70 Vt. 498; 41 Atl. 501.
7 United States v. Martin, 94 U. S. 400; Guthrie v. Merrill, 4 Kan. 187; Schurr v. Savigny, 85 Mich. 144; 48 N. W. 547.
8 Cany v. Halleck, 9 Cal. 198.
9 Voorhees v. Coombs, 33 N. J. L. 404.
10 Guthrie v. Merrill, 4 Kan. 187.
11 Lowe v. Marlowe, 4 111. App. 420.
12 United States v. Martin. 94 U. S. 400; Grisell v. Feed Co., 9
Ind. App. 251; 36 N. E. 452; McCarthy v. New York, 96 N. Y. 1; 48 Am. Rep. 601.
13 Luske v. Hotchkiss, 37 Conn. 219; 9 Am. Rep. 314; Schurr v. Savigny, 85 Mich. 144; 48 N. W. 547.
14 Luske v. Hotchkiss. 37 Conn. 219; 9 Am. Rep. 314; Lowe v. Mar-low. 4 I1l. App. 420.
15 United States v. Martin, 94 U. S. 400.
16Forster v. Green. Ill Mich. 264; 69 N. W. 647.
17Schurr v. Savigny, 85 Mich. 144; 48 X. W. 547.
18 Brooks v. Cotton. 48 N. H. 50.
19 Cany v. Halleck, 9 Cal. 198.
20 Cany v. Halleck, 9 Cal. 198.
21 Luske v. Hotchkiss. 37 Conn. 219: 9 Am. Rep. 314; Grisell v. Feed Co., 9 Ind. App. 251; 36 N. E. 452: McCarthy v. New York, 96 N. Y. 1; 48 Am. Rep. 601.
If the extra work done is of a character different from the general nature of that for which the employee was hired, a previous request by his employer to do such work,23 or a subsequent voluntary acceptance thereof,24 will of itself create an implied agreement to pay therefor.25 Thus if an agent of the United States to sell lands belonging to the United States is hired to sell other lands belonging to Indians a contract to pay a reasonable compensation is implied.26 So an agent of a corporation at a monthly salary who does extra work in getting subscriptions to the corporation's stock under the offer of the corporation to pay two per cent commission for obtaining such subscriptions can recover such commission.27 So where A who is the mayor of a city and a member of its council is employed by the council to act as attorney for the city in a pending case, he may recover.28 If the adversary party to the contract requests a departure therefrom which necessitates additional labor and material, the contractor may recover a reasonable compensation for such extra labor and material if no express contract is made therefor.29 Thus extra recovery may be had by a railroad contractor for putting in a temporary track in order to enable the company to secure subscriptions which were conditioned on the comple-
22Bachelder v. Bickford, 62 Me. 527.
23 United States v. Brindle, 110 U. S. 688; Niles v. Muzzy, 33 Mich. 61; 20 Am. Rep. 670.
24 Cincinnati, etc., R. R. v. Clark-son, 7 Ind. 595.
25 Converse v. United States, 21 How. (U. S.) 463.
26 United States v. Brindle, 110 U. S. 688.
27 Cincinnati, etc., R. R. v. Clark-son, 7 Ind. 595.
28 Niles v. Muzzy, 33 Mich. 61; 20 Am. Rep. 670.
29 Henderson Bridge Co. v. Mc-Grath, 134 U. S. 260; Smith v. Salt Lake City, 83 Fed. 784; Cook County v. Harms, 108 111. 151; Evans v. McConnell. 99 la. 326; 63 X. W. 570; Isaacs v. Reeve (N. J. Eq.). 44 Atl. 1; Delafield v. Westtion of the road by a certain date.30 On the other hand one who does no more than he agreed to do cannot recover more than the contract price because the performance is less profitable than he had anticipated.31 No recovery can be had as for extra work for work necessary in the performance of the contract though not specifically mentioned therein,32 as for blasting rock when necessary for the excavation of drains required by the specifications ;33 digging to an extra depth,34 or driving piling35 to obtain a secure foundation required by the contract, or underpinning an adjoining building to make an excavation and put in a foundation required by the contract.36 One who does more work or furnishes more material than is required by the terms of the contract without the consent of the adversary party cannot recover therefor. Thus a contractor who has agreed to rub down brick work cannot recover as for extra work though he uses acid in cleaning the walls.37 So one who has agreed to put in glass for three elevations of a building, and without the knowledge of the owner, and in spite of the fact that the owner has warned him not to put in more than the contract calls for, puts glass in on the fourth elevation also, cannot recover extra compensation.38 No recovery can be had by a contractor for extra work made necessary by the failure of the contractor or his em-ployees to comply with the specifications.30 No recovery can be had for extra work if the party claiming to have done such work knows before he does it that the adversary party claims that such work is required by the provisions of the contract.40 field, 77 Hun 124; Lee v. Brayton, 18 R. I. 232; 26 Atl. 256; Rhodes v. Clute, 17 Utah 137; 53 Pac. 990.
30 Central Trust Co. v. Condon, 67 Fed. 84.
31 Contracts for excavating under directions of the owner's engineer. Huckestein v. Inclined Plane Co., 173 Pa. St. 169; 33 Atl. 1108.
32Brigham v. Martin, 103 Mich. 150; 61 N. W. 276.
33 Lee v. Brayton, 18 R. I. 232; 26 Atl. 256.
34Ruecking v. McMahon, 81 Mo. App. 422.
35 Stewart v. Cambridge, 125 Mass. 102.
36 Ashley v. Henahan, 56 O. S. 559; 47 N. E. 573.
37 Chamberlain v. Hibbard, 26 Or. 428; 38 Pac. 437.
38 Pittsburgh Plate Glass Co. v. MacDonald, 182 Mass. 593; 66 N. E. 415.
39 O'Brien v. New York, 139 N. Y. 543; 35 N. E. 323.
40 O'Brien v. New York, 139 N. Y. 543; 35 N. E. 323.
In such case, if the contractor is willing to take the chances of the correctness of his interpretation of the contract, he should perform the contract as he understands it, and enforce his contract rights against the adversary party.41 Even if an architect's certificate is by the contract necessary to recovery, he may recover without it if his interpretation of the contract is correct, since it is in such case withheld unreasonably.42 If the contract requires a written order from the architect for extra work no recovery can be had for extra work done without such order if the owner or his authorized agent have neither of them waived such provision.43 The architect has no authority in such cases to bind the agent by an oral order, by virtue alone of his employment as architect with power to order alterations in writing. The owner may waive such provision, however, and thus bind himself by oral modifications of the contract.44