Baltimore & Ohio Rail Road v. Resley

A contractor agreed to build a section of a railroad by a written contract, which stipulated that four-fifths of the monthly estimates should he paid to him during the progress of the work, and ihe balance on the completion of the contract, and that the monthly and final estimates made by the local engineer should be conclusive between the parties, unless modified by the chief engineer, in which event his estimate was to he conclusive. After part of the work was done under this contract a pafol modification of it was made, by which the estimates were to he paid the contractor according to his expenses until the work was completed, the understanding being that he was not to lose his twenty per cent, on the work already done, and was to be protected from further loss, and, save in these particulars, the contract was to stand as it w‘aS; his expense's were to be the monthly estimates. Held : 1st. That by the contract as modified a final estimate was to be made, after the whole was completed, of the work done prior to the new arrangement, and paid for according to contract prices, and the work done after was to he paid for according to its actual cost, to be ascertained by the monthly account of expenses. 2nd. The fact that these fnonthly estimates ascertained the quantity and kind of work, but did not give the calculation of the value in columns of dollars and cents, is no objection to them; they are a substantial compliance with the requisitions of the contract. 3rd. The measure of damages for work done after flic new arrangement waff its actual cost, and a prayer which asserts that the measure of damages for such work is the rates fixed by the original contract, is erroneous. 4th. For all work done after the new arrangement the contractor was to bo indemnified his expenses, no matter what the measurement of such work was. 5th. The company having released the contractor, by consent, from the completion of the wort under the contract, he can sue in assumpsit for the work' done. If a prayer is defective in any particular, it is properly rejected. A prayer that if the jury find that the plaintiffs performed the work “under the contract offered in evidence by the defendant,’” assumes the existence and execution of the contract, and is for this reason defective. A contract provided that the balanee due on it should be paid to the contractor, “ upon his giving a release under seal” to the company. Held, that the tender of this release is not a condition precedent, but an act to bo done simultaneously with the payment of the money. The interpretation of a contract is a question of law, and a prayer which submits this to tho jury is for this reason defective.

Appeal from the Circuit Court for Allegany county. Jlssumpsit by the appellees against the appellant, to recover for excavating and constructing the 21st section of the Baltimore and Ohio Rail Road west of Cumberland. The counts in the declaration chiefly relied on were for work and labor, and money paid, laid out and expended. There were also two counts for refusing and neglecting to repair a bridge over the Potomac river which the defendant had erected, and which the nar alleges it agreed to keep in repair for the convenience of the plaintiffs in hauling dirt for the embankments, &c. Pleas, ’•'•non assumpsit” and “payment.” 1st Exception. When the case was first called for trial, on the 18th of April, the defendant being about to file an affidavit for a continuance for the want of a material witness, it was, by order of court, and consent of the parties and the bar, set down for trial on the 28th of that month. By a rule of court cases were required to be tried or continued when called, but it provided that a case may be taken up out of its order by consent of the bar. By another rule the appeal docket was required to be taken up on the third Tuesday of each term and proceeded with until disposed of, giving preference, however, to criminal cases when ready. In accordance with this rule the appeal docket was taken up and proceeded with until a criminal case intervened on the 27th, which occupied all of that day and the 28th. On the 29th, the defendant objected to proceeding to trial on that day, there being cases on the appeal docket undisposed of and ready for trial, and because it had permitted a material witness to-leave whose return was expected on the night of that day, and that it could not go to trial with safety for the want of this witness; and moved the court not to go into the trial of this case on this day, but to postpone it until it is reached in its regular terra on the trial docket, it being the first case on that docket when it should be again taken up. This motion the court, (Persy, J.,) overruled, and ordered the trial to proceed, and to this ruling the defendant excepted. 2nd Exception. The plaintiffs then offered certain testimony taken under a commission. The defendant requested the court to examine this testimony, and objected to any part of it being read to the jury, unless the plaintiffs offered in evidence the written agreement of which the witnesses spoke, it being admitted that the defendant had given the plaintiff notice to produce it. On the reception of this notice the plaintiffs’ counsel immediately tendered to the counsel for the defendant the paper therein referred to, but declined to offer it in evidence. The court overruled the objection, and ruled that the testimony might be read without offering in evidence the agreement. To this ruling the defendant excepted. 3rd Exception. The defendant then objected to the admissibility of the answers of one of the witnesses, whose testimony was embraced in this commission, to certain interrogatories, but afterwards withdrew the objection. The plaintiffs thereupon offered to withdraw the answers to these interrogatories before they were read. The defendant then objected to the withdrawal of them, so far as they tend to prove the existence of a written agreement between the plaintiffs and defendant for the completion of the said section of the railroad. The court overruled this objection and permitted the plaintiffs to withdraw said answers, and to this ruling the defendant excepted. 4th Exception. The plaintiffs then read the testimony, excepting the answers, which were withdrawn. The defendant then offered and read in evidence certain portions of these withdrawn answers relating to the existence of a written agreement between the plaintiffs and the defendant. The plaintiffs then offered to prove by Dayton, a competent witness, the nature, character and value of the work done by the plaintiffs on said section. To the admissibility of this evidence the defendant objected, unless the plaintiffs first offered in evidence the written contract aforesaid. The court overruled this objection and permitted the testimony to go to the jury, and to this ruling the defendant excepted. 5th Exception. After the testimony of Dayton, and other witnesses to the same point, had been offered by the plaintiffs, the defendant proved the execution of the contract referred to, dated the 6th of July 1850, and then offered it in evidence. (The clauses and purport of this contract are sufficiently stated in the opinion of this court.) The defendant then further offered in evidence the monthly and final estimates made by the local or resident engineers, and various receipts of the plaintiffs for money paid them on account of their contract. These estimates consisted of the number of cubic yards of rock, earth, &c., but the calculation of the value according to the contract prices was not made and carried into columns of dollars and cents. The defendant then further proved by Small, one of its engineers, that on or about the 20th of March 1851, a parol modification of this contract was made, the terms of which are sufficiently stated in the opinion of this court. The defendant then asked instructions to the jury, in substance as follows; 2nd. That if the jury find from the evidence that the plaintiffs performed the work on said section prior to the 20th of March 1851, under the contract offered in evidence by the defendant, and that monthly estimates of the quantity, character and value of the work done during the month or since the last monthly estimate, were made by the local engineers, in accordance with the provisions of the contract, bona fide, and that the plaintiffs received the four-fifths of said monthly estimates, as provided for in the contract, then each of said estimates is an adjustment of the work done up to the time it was made, and is conclusive between the parties, unless the chief engineer deemed it proper to revise and alter them, in which event his estimate would be final and conclusive between the parties, in the absence of all fraud on the part of the defendant or its engineer or engineers. 3rd. If the jury find that the plaintiffs did the work under the contract, and that said contract was executed by them up to the 20th of March 1851, and that at that time it was agreed by the parties, that instead of the monthly estimates, as provided for by the contract, they should be paid their expenses for the work done during the month, and that the actual expenses were returned and paid by the defendant under said agreement instead of the monthly estimates, then each payment of said monthly expenses is an adjustment of the work done up to the lime it was made, and is final and conclusive in the absence of all fraud on the part of the defendant, and the plaintiffs cannot now go behind said adjustments to recover for work and labor done. 4th. If the jury find that the plaintiffs did the work up to the 20th of March 1851, under the provisions of the contract, and that they entered into said agreement as offered in evidence by the defendant, and that monthly estimates were made by the resident or local engineers in accordance with the provisions of the contract, bona Jide, and that the plaintiffs received the four-fifths of said monthly estimates; and that at or about that time it was mutually agreed between the parties, that the plaintiffs should go on with the work and should be paid their expenses, instead of the monthly estimates as provided for by the contract until the work was completed, that then it should be finally measured up, and if there should appear to be any thing due the plaintiffs over what they had already received for the work done before that time it should be paid them; that they were not to lose that part of the tw'enty per cent, for work then done which remained in the hands of the defendant, that they were to be protected from all further loss on the section, that their expenses were to be the monthly estimates, and that the contract, save in these particulars, was to stand as it was; and if they further find that the plaintiffs’ expenses were so returned as the monthly estimates, and exceeded what the estimate would have been under the contract at the contract prices, and paid by the defendant and received by the plaintiffs as such, then each of said monthly estimates so paid, both before and after the 20th of March 1851, is an adjustment of the work done, and the plaintiffs are concluded by these settlements, and by reason of their being closed as separate and distinct portions of the contract, that the plaintiffs cannot open them again to prove and recover the actual value of their work, and that they are effectually barred by adopting the adjustment and receiving payments under them, in the absence of all fraud on the part of the defendant, or its engineer or engineers. 5th. That if the contract was entered into by the parties, and remained unaltered and unrescinded, except as stated in the fourth prayer, up to the 19th of August 1851; that at that time the plaintiffs had not finished the work, but that it was then agreed the work should pass over to the defendant,-and that the plaintiffs should retire from it in the state it then was, and that at that time the local or resident engineer having charge of the work for the time being, made a final estimate of the quantity, character and value of the said work, agreeably to the terms of the said agreement, and the modification thereof bona fide, the said final estimate is conclusive between the parties, unless the chief engineer deem it proper at any time to revise and alter the same, in which event the estimate of the said chief engineer is conclusive between the parties, in the absence of all fraud on the part of the defendant and its engineer or engineers. 6th. If the jury find as stated in the fourth prayer, the plaintiffs are only entitled to recover that portion, if any, of the twenty per cent, remaining in the hands of the defendant for work done prior to the 20th of March 1851, and that portion of the work not embraced in the monthly estimates prior to the 20th of March 1851, nor in the monthly expenses or estimates after that time, if any, and that the measure of damages for any such work would be the contract price contained in the contract for work of a similar character. 7th. If the jury find as stated in the fourth prayer, the plaintiffs are not at liberty to establish, by any other evidence than that prescribed in the contract and as the same was modified, the quantity, character and value of the work done, unless they had, after proper exertions on their part, made an ineffectual attempt to procure it; that it was their duty to have applied to the engineer to make the measurements before any other evidence would have been admissible as a substitute for such proof, and that all their testimony of the quantity, &c., of the work done by them under the contract is inadmissible, unless they applied to the engineer, whose duty it was, under the contract, to make the measurements, and failed to procure them. 8th. If the use of the trussel bridge was part of the plan for executing the work, the defendant, by its engineer, had power, by the contract, to alter said plan; but if, by such change, the work was made more expensive to the plaintiffs, they are entitled to such allowance as the engineer, in his own judgment, may consider just. 9th. If the jury find as stated in the fourth and fifth prayers, the plaintiffs cannot recover in general assumpsit and under the declaration in this-case, but must proceed upon the special contract and declare specially, unless they find that the work specified in the contract was performed and completed by the plaintiffs. 10th. That the plaintiffs are not entitled to recover for any balance due them under the ballast contract of the 16th of November 1850, unless the jury find that the plaintiffs first tendered to defendant a release, in writing, under seal, releasing the defendant from all claim or demands growing in any manner out of said agreement. (The provisions of this contract are sufficiently stated in the opinion of this court.) 11th. This prayer, after embodying, in substance, the fourth prayer, proceeds: If the jury shall believe as aforesaid, except that the final estimate was not made in accordance with the provisions of the contract and the modifications as aforesaid, owing to gross negligence or for the want of proper measurements, or any other cause, the plaintiffs are not at liberty to establish, by any other evidence than that piescribed in the contract and as the same was modified, the quantity, character and value of the work done, unless they find that the plaintiffs,, after proper exertions on their part, had made an ineffectual attempt to procure it, as stated in the seventh prayer. All these prayers the court refused, and to this ruling the defendant excepted;, and the verdict and judgment being in favor of the plaintiffs for §4950.50, the defendant appealed.