Baltimore & O.&C.R. Co. v. Scholes

• Decision Date: 06 March 1896
• Citation: 14 Ind.App. 524,43 N.E. 156
• Court: Indiana Appellate Court
• Parties: BALTIMORE & O. & C. R. CO. v. SCHOLES.

14 Ind.App. 524

43 N.E. 156

BALTIMORE & O. & C. R. CO.

v.SCHOLES.

Appellate Court of Indiana.

March 6, 1896.

Appeal from circuit court, De Kalb county; S. A. Powers, Judge.

Action by Frank Scholes against the Baltimore & Ohio & Chicago Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.J. E. Rose and J. H. Collins, for appellant. L. M. Ninde & Sons, for appellee.

REINHARD, J.

Action by the appellee against the appellant on an account for work and labor in the construction of a railroad yard at Chicago Junction, Ohio, on which a balance of $3,000 is alleged to be due. Subsequently another paragraph of complaint was added. This paragraph declared upon a special contract, containing, among others, the following provisions: “And it is expressly understood that the monthly and final estimates of said engineer as to the quantity, character, and value of the work shall be conclusive between the parties to this contract (the former for the time being, and the latter for all time) without further recourse or appeal; the monthly estimates of the engineer being, however, subject to correction by him in any subsequent monthly or in his final estimates, for the reason that the monthly or current estimates, being merely made out as a basis for payment on account, will necessarily be only approximately correct, pains being taken, however, to make them as accurate as possible. It is further covenanted and agreed that all extra work required, and not embraced under items and prices above set out, shall be done by the contractor at the estimate of the engineer; and said engineer shall embody in each monthly estimate a bill for the same, made out as correctly as possible, for the month preceding. These bills shall be final for such months, and the acceptance of the estimates by the said contractor shall be deemed and taken as waiving any further claim for or on account of extra work done up to that time. It is mutually agreed and distinctly understood that the decision of the engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same; and said first party does hereby waive any right of action, suit, or suits, or other remedy in law or otherwise, by virtue of the covenants herein, so that the decision of the said engineer shall, in the nature of an award, be final and conclusive of the rights and claims of said parties.” The appellant demurred to each paragraph of the complaint; the demurrer was overruled; and the appellant excepted. The appellant answered in six paragraphs, viz.: (1) The general denial. (2) Payment. (3) That, before the commencement of the action, the plaintiff sold, transferred, and assigned to one W. B. Keefer all claims and demands which he might have against the defendant, and particularly the claim set out in the plaintiff's complaint. (4 and 5) A written assignment of the claim to W. B. Keefer. (6) That on the 4th day of March, 1891, the plaintiff and defendant mutually settled all matters of difference between them, and every demand and claim of any and every kind and nature whatsoever, of the one against the other, and that the plaintiff acquitted the defendant of any and all liability to him respecting said claim, in consideration of a sum named. The appellee replied to the sixth paragraph of the answer, admitting that the defendant paid him the sum of $1,452.70; but he further averred that, after the completion of the work, the defendant wrongfully failed and neglected to make full, true, and complete estimates for the same; and that on account of the delay, neglect, and refusal in this regard, and his poverty and inability to procure money with which to pay his debts incurred in the construction of the work, suits were brought against him, and the money due him from defendant was garnished and tied up; and that, taking advantage of the situation produced by this conduct of the defendant, the latter, through its agents and chief engineer, proposed to pay the plaintiff $1,452.70, and further proposed that, if plaintiff would accept said money and sign a receipt therefor, it would make further true, full, and complete estimates of said work, and would pay plaintiff anything that might be justly due and owing to him; and, in consideration of said agreement, he accepted said money, and gave his receipt therefor, but that the defendant failed and refused to make any further full, true, and correct estimates. It is further averred that, at the time plaintiff accepted this money and made this settlement, he protested that there was more due him, and that, under his protest and the conditions averred, he accepted the money and signed the receipt. There was a demurrer to this reply, which was overruled, and an exception...