54 N.W. 743 (Minn. 1893), Fowlds v. Evans

Citation:54 N.W. 743, 52 Minn. 551
Opinion Judge:Collins, J.
Party Name:Wm. Fowlds v. A. L. Evans et al
Attorney:Hunt & Morrill, for appellant. Davenport & Thian, for respondent.
Case Date:April 05, 1893
Court:Supreme Court of Minnesota
 
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Page 743

54 N.W. 743 (Minn. 1893)

52 Minn. 551

Wm. Fowlds

v.

A. L. Evans et al

Supreme Court of Minnesota

April 5, 1893

Submitted on briefs December 15, 1892

Appeal by plaintiff, William Fowlds, from an order of the District Court of Pope County, Searle, J., made August 4, 1892, denying his motion for a new trial.

The defendant the Duluth, Huron & Denver Railroad Company, a corporation, entered into a contract with the defendant A. L. Evans of Chicago, Illinois, to construct a part of its line of railway between Sauk Center, in Stearns county, and Appleton, in the county of Swift. On July 16, 1887, Evans sublet a portion of the work to plaintiff, who agreed to commence said work in ten days from that date, and to prosecute the same with such force and means as would, in the opinion of the chief or assistant engineer, insure the completion of the same on or before the 15th day of September, A. D. 1887; to be subject at all times during the progress of the work to the directions of the chief or assistant engineer, or said Evans, as to the mode of doing the same, and to conform to the rules and general specifications attached and made a part of the agreement. Plaintiff also agreed not to assign or transfer the contract, or relet any of the work without the written assent of Evans, and to constantly superintend the work in person. Plaintiff also agreed to conform in all respects to the directions and instructions of the chief or assistant engineer, or Evans, relative to the work, and to progress with the same at such time or times, in such manner, and at such particular points on the line of the work as the chief or assistant engineer should direct. The chief engineer was made an umpire to decide all matters arising or growing out of the contract. It was further mutually agreed between the parties that if plaintiff should, in the opinion of Evans, fail or refuse to comply with any of the stipulations contained in the contract, Evans should have a right to cancel the contract and declare the same void; in which event plaintiff was to have no claim whatever on Evans for damages or compensation or for the percentage retained either for material or work, but Evans was to have a right to take possession of, and hold said material and work absolutely, and be absolved as entirely and completely from the contract as if the same had never been made. It was further mutually agreed and understood, that if the plaintiff should at any time neglect or refuse to progress with the work as fast as in the opinion of the engineer or Evans (communicated in writing to plaintiff) might be necessary for the completion by the time specified, then Evans might declare the contract abandoned, and the amount that may have been retained out of the monthly estimates forfeited. Evans retained the right to stop any or all of the work, or to diminish the force employed. It was further agreed that the decision of the chief engineer on any point or matter touching the agreement should be final and conclusive between the parties, and whenever the work, in the opinion of the chief engineer, should be finished in every respect, and performed agreeably to the specifications, and said chief engineer shall have furnished to Evans a certificate of the facts under his hand, together with his estimate of the quantity of the various kinds of work done, then Evans should pay to Fowlds, within fifteen days thereafter, all sums which might then be due under the contract, agreeably to the estimate, viz. fourteen cents per cubic yard, ninety per cent to be paid in cash on or about the 15th day of every month, for all work done the previous month; the balance with the final payment. The times therein specified were declared to be of the essence of the contract.

Under this contract, plaintiff between July 16, and November 23, 1887, performed work and labor on said line. He excavated and moved 233,043 cubic yards of earth, and received on account of said work, the sum of $ 9,730.50. On July 28, 1887, plaintiff entered into another contract with said Evans to build and construct another portion of the lien. This contract contained terms and stipulations like the first. Under this contract 143,583 cubic yards of earth were moved. Plaintiff made an affidavit and claim of lien for the work done under each of the contracts, and they were duly filed in the office of the Secretary of State. There remained unpaid about $ 54,000. Other lien claimants, made defendants in this action, did work and filed liens for about $ 96,000 more.

This action was brought August 15, 1889, to foreclose the liens under 1878 G. S. ch. 90. The new lien law of 1889, ch. 200, had not then gone into effect. Evans and the Railroad Company and all lien claimants were made defendants. The action was tried at St. Cloud on October 16, 1891. Findings were filed on April 12, 1892, and judgment ordered for defendants, on the grounds considered in the opinion of this court. Plaintiff moved for a new trial, and being denied, appealed.

Judgment reversed.

Hunt & Morrill, for appellant.

On all the material points of this case the trial court found in favor of the plaintiff; but on technical grounds granted judgment for defendant. The lower court found that time was of the essence of the contract, and that to recover, plaintiff must show completion of the work under the first contract by September 15, 1887. The work was completed November 23, 1887, and the plaintiff claims under the acts of defendant Evans, a waiver of the element of time, in case it can be read into the contract. The lower court also found that there was no proof that the engineers' certificates and estimates were delivered to Evans; and that the admitted delivery of the bonds to Evans by the company, paying him for the work, did not estop the company from claiming that Evans did not receive the certificates and final estimates required by the contract with plaintiff; and that J. S. Wilson was not shown to be agent of Evans. It is admitted that the certificates and estimates were delivered by the chief engineer to Wilson for Evans. No definite date was fixed within which the work was to be completed; plaintiff only agreed to prosecute the work with such force and means as would in the opinion of said chief or assistant engineer, insure its completion on or near the 15th day of September, 1887. The work was to be completed, as stated in the contract, "to the satisfaction and acceptance of the chief or assistant engineer of the Duluth, Huron & Denver Railroad Company;" and the engineer of said company has testified that it was so completed. The chief engineer who was sole umpire under this contract, permitted plaintiff to proceed with the work under the contract, after September 15, and he made...

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