HUTCHESON, Circuit Judge.
Appellant, a subcontractor on the Copano Bay highway project, brought this suit against appellees, the contractors, to obtain payment for material its dredge had pumped onto an embankment in excess of the amount [970]*970estimated by the state' engineers, and paid for by the highway" commission of Texas.
Neither in the pleadings nor in the course of any of the proceedings in the lower court was any claim made against the state, or that it had not paid Myers, the contractor, all that was due by it under its contract. On the contrary, appellant conceded that it had.1 The case was put entirely on the ground that the subcontract dated May 9, 1930, had definitely fixed'the basis for payment as between- the parties to it; that it and not the general contract, dated February 15, 1939, controlled, and that under its terms considerably more was due. We shall therefore, though appellant in the third proposition of his brief does argue that “Myers” has not been fully paid, confine ourselves to a determination of whether plaintiff had a different contract with Myers, and whether anything more was due plaintiff under it, regarding it as closed here that the state has fully paid what, under its contract, it was due to pay for the embankment.
The cause and the point of the controversy is to be found in the fourth paragraph of the joint bid or proposal which appellant and another dredging contractor had on January 17,1930,2 submitted to appellees when it was preparing to bid on a large amount of embankment and trestle work in the vicinity of Corpus Christi, including tbe Copano Bay project.
Appellant claims that all the negotiations, including the telegrams exchanged on the Copano Bay project before it moved its dredge there, and commenced to work, culminating in the wire of March 18, 19G0, of which wire Mr. Linde said, “I would consider that the contract,” 3 were had on the basis of this proposal, and that, when the final subcontract came to be signed, thirty days after the commencement of the work, this proposal was carried forward in it, by this paragraph, which Warriner, its secretary treasurer, insisted'on writing into the contract, and which was written into the seventh paragraph before he would sign it: “And subject especially to the joint’ proposal made by the Gulf Coast Dredging-Company and Linde Dredging Company January 17, 1930 except that the price is as contained in paragraph 9.”
' Appellant claims that this insertion imported the fourth paragraph of the proposal into the subcontract, so that the subcontract thereafter read: “This quotation is based on that the dredge he permitted to work within 350 feet from the center line of the embankment and payments to be made for the natural slopes whatever the dredge will make, depending on the character of material. The [971]*971slopes called for in the specifications will be done as near hydraulically as the dredge can do it.” .It further claims that, by the insertion of that provision in the subcontract, it provided for payment for all material the dredge pumped onto the embankment whether it remained in or outside of the typical cross section the state, in its contract, had required for the embankment, and agreed to pay for. That though, therefore, “Linde” had in clause after clause of the subcontract agreed to do and perform that part of the general contract it had undertaken as called for in that contract, its plans and siDceifications, and to be paid for doing it according to the estimates of the engineers; in short, though Linde had by general and specific references imported the applicable portions of the main contract into the subcontract,4 it had, by the insertion of the paragraph above quoted, effected an agreement with the general contractor which made Myers liable, not for the quantity of material placed in the embankment in accordance with the requirements of the plans and specifications, and as ascertained by the engineers, as Myers’ contract and the subcontract in terms had agreed should be done, but for all the material pumped onto the embankment remaining within the natural slopes made by the action of the dredge, though the excess material formed no part of the embankment, as Myers by its contract and Linde by adopting that contract had agreed to construct it, and though, because not in accordance with the contract, Myers was to receive no pay for it.
The District Judge, before whom the ease, by waiver of jury, was tried, found the making of the contract and subcontract and that “because of the difficulty in a job of this size and kind in adhering precisely to the contract and specifications, and because of the physical conditions, an additional 54,478 cubic yards of earth was placed in the approaches by Linde Company, for which it has been paid nothing and which is the basis of this controversy,” concluded that plaintiff’s claim was without legal basis, because it was not in accordance with the agreement it had made with the contractor. He gave judgment for the defendant.
Appellant insists that the District Judge has deprived it of its own contract with Myers by holding it to the contract Myers had with the state. Citing cases like Guerini Stone Co. v. P. J. Carlin Construction Co., 240 U. S. 264, 36 S. Ct. 300, 60 L. Ed. 636, Cummings Const. Co. v. Marbleloid Co. (C. C. A.) 51 P. (2d) 906, Lisher v. Fairbanks, 70 Cal. App. 326, 233 P. 74, where the contract was not imported into and made a part of the subcontract, but was merely referred to for a limited purpose, it argues that they rule this case.
We do not think so. The eases controlling here are those which hold that, when a subcontractor agrees to do the work as provided for in the plans and specifications, and to be paid in accordance with them, and with the ■ estimates of the engineers, theso agreements, in the absence of the clearest kind of showing to the contrary, must be taken as evidencing the principal apparent purpose of the parties [Cocke v. Vacuum Oil Co. (Tex. Civ. App.) 63 F. (2d) 406] and the subcontractor must abide by them [Watson Co. v. Bleeker (Tex. Civ. App.) 283 S. W. 260].
Appellant, by every test of what constitutes a subcontractor within the strictest meaning of that term, was established by the evidence in this ease to have been one. People v. Fidelity & Deposit Co. of Maryland, 232 Mich. 238, 205 N. W. 157, 158; People v. Valley Mantel & Tile Co., 200 Mich. 554, 166 N. W. 839; People v. Morrison, 228 Mich. 216, 199 N. W. 689; Watson Co. v. Bleeker, supra..
Not only the provisions in the subcontracts themselves, but the testimony as to how the work was done, makes it clear that Linde sub • stituted for Myers in the making of the embankment, and that everybody so understood [972]*972it. Knowing that it did so, Linde made every effort to lay it down as the engineers required, even at times piling brush on the embankment to hold it within the typical slope which at some points was 10 to 1, and at others, 20 to 1. Knowing that it did so, the state engineers dealt with Linde at first hand, complaining at first of the material pumped to the fill, and later finding it acceptable.
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HUTCHESON, Circuit Judge.
Appellant, a subcontractor on the Copano Bay highway project, brought this suit against appellees, the contractors, to obtain payment for material its dredge had pumped onto an embankment in excess of the amount [970]*970estimated by the state' engineers, and paid for by the highway" commission of Texas.
Neither in the pleadings nor in the course of any of the proceedings in the lower court was any claim made against the state, or that it had not paid Myers, the contractor, all that was due by it under its contract. On the contrary, appellant conceded that it had.1 The case was put entirely on the ground that the subcontract dated May 9, 1930, had definitely fixed'the basis for payment as between- the parties to it; that it and not the general contract, dated February 15, 1939, controlled, and that under its terms considerably more was due. We shall therefore, though appellant in the third proposition of his brief does argue that “Myers” has not been fully paid, confine ourselves to a determination of whether plaintiff had a different contract with Myers, and whether anything more was due plaintiff under it, regarding it as closed here that the state has fully paid what, under its contract, it was due to pay for the embankment.
The cause and the point of the controversy is to be found in the fourth paragraph of the joint bid or proposal which appellant and another dredging contractor had on January 17,1930,2 submitted to appellees when it was preparing to bid on a large amount of embankment and trestle work in the vicinity of Corpus Christi, including tbe Copano Bay project.
Appellant claims that all the negotiations, including the telegrams exchanged on the Copano Bay project before it moved its dredge there, and commenced to work, culminating in the wire of March 18, 19G0, of which wire Mr. Linde said, “I would consider that the contract,” 3 were had on the basis of this proposal, and that, when the final subcontract came to be signed, thirty days after the commencement of the work, this proposal was carried forward in it, by this paragraph, which Warriner, its secretary treasurer, insisted'on writing into the contract, and which was written into the seventh paragraph before he would sign it: “And subject especially to the joint’ proposal made by the Gulf Coast Dredging-Company and Linde Dredging Company January 17, 1930 except that the price is as contained in paragraph 9.”
' Appellant claims that this insertion imported the fourth paragraph of the proposal into the subcontract, so that the subcontract thereafter read: “This quotation is based on that the dredge he permitted to work within 350 feet from the center line of the embankment and payments to be made for the natural slopes whatever the dredge will make, depending on the character of material. The [971]*971slopes called for in the specifications will be done as near hydraulically as the dredge can do it.” .It further claims that, by the insertion of that provision in the subcontract, it provided for payment for all material the dredge pumped onto the embankment whether it remained in or outside of the typical cross section the state, in its contract, had required for the embankment, and agreed to pay for. That though, therefore, “Linde” had in clause after clause of the subcontract agreed to do and perform that part of the general contract it had undertaken as called for in that contract, its plans and siDceifications, and to be paid for doing it according to the estimates of the engineers; in short, though Linde had by general and specific references imported the applicable portions of the main contract into the subcontract,4 it had, by the insertion of the paragraph above quoted, effected an agreement with the general contractor which made Myers liable, not for the quantity of material placed in the embankment in accordance with the requirements of the plans and specifications, and as ascertained by the engineers, as Myers’ contract and the subcontract in terms had agreed should be done, but for all the material pumped onto the embankment remaining within the natural slopes made by the action of the dredge, though the excess material formed no part of the embankment, as Myers by its contract and Linde by adopting that contract had agreed to construct it, and though, because not in accordance with the contract, Myers was to receive no pay for it.
The District Judge, before whom the ease, by waiver of jury, was tried, found the making of the contract and subcontract and that “because of the difficulty in a job of this size and kind in adhering precisely to the contract and specifications, and because of the physical conditions, an additional 54,478 cubic yards of earth was placed in the approaches by Linde Company, for which it has been paid nothing and which is the basis of this controversy,” concluded that plaintiff’s claim was without legal basis, because it was not in accordance with the agreement it had made with the contractor. He gave judgment for the defendant.
Appellant insists that the District Judge has deprived it of its own contract with Myers by holding it to the contract Myers had with the state. Citing cases like Guerini Stone Co. v. P. J. Carlin Construction Co., 240 U. S. 264, 36 S. Ct. 300, 60 L. Ed. 636, Cummings Const. Co. v. Marbleloid Co. (C. C. A.) 51 P. (2d) 906, Lisher v. Fairbanks, 70 Cal. App. 326, 233 P. 74, where the contract was not imported into and made a part of the subcontract, but was merely referred to for a limited purpose, it argues that they rule this case.
We do not think so. The eases controlling here are those which hold that, when a subcontractor agrees to do the work as provided for in the plans and specifications, and to be paid in accordance with them, and with the ■ estimates of the engineers, theso agreements, in the absence of the clearest kind of showing to the contrary, must be taken as evidencing the principal apparent purpose of the parties [Cocke v. Vacuum Oil Co. (Tex. Civ. App.) 63 F. (2d) 406] and the subcontractor must abide by them [Watson Co. v. Bleeker (Tex. Civ. App.) 283 S. W. 260].
Appellant, by every test of what constitutes a subcontractor within the strictest meaning of that term, was established by the evidence in this ease to have been one. People v. Fidelity & Deposit Co. of Maryland, 232 Mich. 238, 205 N. W. 157, 158; People v. Valley Mantel & Tile Co., 200 Mich. 554, 166 N. W. 839; People v. Morrison, 228 Mich. 216, 199 N. W. 689; Watson Co. v. Bleeker, supra..
Not only the provisions in the subcontracts themselves, but the testimony as to how the work was done, makes it clear that Linde sub • stituted for Myers in the making of the embankment, and that everybody so understood [972]*972it. Knowing that it did so, Linde made every effort to lay it down as the engineers required, even at times piling brush on the embankment to hold it within the typical slope which at some points was 10 to 1, and at others, 20 to 1. Knowing that it did so, the state engineers dealt with Linde at first hand, complaining at first of the material pumped to the fill, and later finding it acceptable. Knowing that Linde did so, in the final settlement Myers and the state undertook to satisfy all reasonable complaints of Linde, and did, according to the engineers, allow for subsidence and for other causes over 40,000' cubic yards more than were actually found in the typical cross section. Knowing this, Linde contended, and prevailed in its contention, that it must ho allowed to work its dredge within 350 feet of the embankment, and to pui it up hydraulically as near the slope required as its dredge would do it, and this was acceded to by the engineers. Knowing this, Linde at no time during the dredging, and not until dissatisfied with the final estimate, made the claim it now insists on that, though this was not in accordance with the contract Myers had, and which Linde had agreed to perform for him, it must be paid for the material it pumped on the embankment, which ran, floated, or settled beyond the embankment’s typical slopes.
In the light of all these considerations, the claim Linde now makes that reference to the January 19 proposal operates to release it from the conditions of the subcontract which it by agreement and conduct has assumed may not prevail.
Passing the difficulty in its way arising out of the fact that the insertion of the reference in the context where it was found makes it meaningless, and the further difficulty that its generality also> makes it meaningless, because referring to no particular part or paragraph of that proposal, it seeks to import an entire proposal which in its generality could have no relation to the particular work being signed up for, plaintiff finds itself confronted with the insuperable difficulty arising out of the fact that it seeks to give a meaning and effect to a proviso in it destructive of essential provisions of the subcontract appearing both earlier and later in it. It is a settled rule of law that such conflicts will be avoided if a reasonable construction of the whole instrument will permit, and that, if reasonable construction will not remove the conflict, that provision which, according to its place in the contract, its relar tion to it, and the conduct under and construction of it by the parties, is clearly shown to he inconsistent with the main apparent purpose of the contract, will be rejected and disregarded. Thompson v. Waits (Tex. Civ. App.) 159 S. W. 82; St. Mary’s Oil Engine Co. v. Alien-Morrow Co. (Tex. Civ. App.) 20 S.W.(2d) 266, 271; Prince v. Frost-Johnson Lhr. Co. (Tex. Civ. App.) 250 S. W. 785 ; Harper v. Hochstim (C. C. A.) 278 F. 102, 20 A. L. R. 1232; Employers’ Liability Assurance Corp. v. Morrow (C. C. A.) 143 F. 750; Du Puy v. United States (Ct. Cl.) 35 F.(2d) 990.
We need not here gO1 further in construction than to say that the provision may he given, in fact, has been given, reasonable and full effect by taking it to have reference to the position Linde has always assumed and maintained, that the dredge should he allowed to work within 350 feet of the embankment, and that the embankment should be laid down not precisely, but as near precisely, as a hydraulic dredge,could do it. This gives the provision effect in regard to a matter, the use of dredges, which may be supposed to have been of the essence of Linde’s proposal. It prevents its rejection altogether as undertaking to import into a contract, with the whole tenor of which it is at war, the agreement that the subcontractor should he paid for doing work in substitution for the contractor, for that part of the material its dredge pumped out, which was not a part of the embankment as contracted for, and for which therefore the contractor was to receive no pay.
In the Lisher Case, supra, comment was made on the unreasonableness of the contention there, that the subcontractor was hound by the contractor’s interpretation, when the proof showed that the main contractor was getting pay for that which he refused to pay the subcontractor for, and for which he had provided a substantial profit in his contract. The converse is true hare. Having only a small profit at b.est if it got paid for every yard Linde delivered, the contractor stands to lose heavily if the contract is construed as linde construes it, to obligate Myers to pay for all material delivered to the embankment no matter in what part of the hay it finally came to rest, or how far it lay outside of the typical cross-sections which the contractor had agreed to fill and be paid for. Only the clearest, the most convincing proof that this was the agreement should he allowed to prevail over all of the contradictory appearances.
We think the record before us not only does not contain such clear and convincing proof, but that it really makes the other way.
The judgment of the District Court was right; it is affirmed.