Alabama Western R. Co. v. Bush

• Decision Date: 17 April 1913
• Citation: 62 So. 89,182 Ala. 113
• Parties: ALABAMA WESTERN R. CO. v. BUSH.
• Court: Alabama Supreme Court

62 So. 89

182 Ala. 113

ALABAMA WESTERN R. CO. v. BUSH.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Assumpsit by Sam. M. Bush against the Alabama Western Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The action was on the common counts for work and labor done by plaintiff for defendant in the years 1906-07 at its request. Plaintiff did a large amount of construction work on defendant's railroad track between stations 420 and 444 designated as the "Branch creek work," also between stations 1798 and 1904, designated as the "Red Bay work." At the time plaintiff did this work, defendant had contracts with the Talley-Bates Company, or its assigns as an original contract for the construction of all these portions of its track, and plaintiff was engaged in track construction as a subcontractor with and under the Talley-Bates Company. Plaintiff claims that these defendants are directly liable to him for the work in question, by reason of arrangements made with him by several of defendant's civil engineers, who were at the time engaged in supervising and directing the work of construction by which he was requested to do the work, with the express promise that defendant railroad company would pay him for it. The Branch creek work was done between May 25 and August 9 1906. Plaintiff testified as to this that he had no subcontract with any one, but made an original contract in May, 1906, with John M. Baldwin, who acted for defendant. It is without dispute, however, that defendant railroad company furnished all estimates, and made all payments, relative to this work, directly to the Talley-Bates Company and none to plaintiff; and on all the estimate sheets plaintiff was designated as a subcontractor. He received his payment checks from the Talley-Bates Company, and allowed it to retain the customary 10 per cent. pending the completion of the work and he never asked defendant to pay for it until after the Talley-Bates Company abandoned their contract with defendant, and quit work in July, 1907. As to the Red Bay work, plaintiff testified that he had a contract with the Talley-Bates Company for that, but, being doubtful about getting his pay, he talked with W.A. Castler, in August, 1906, before beginning the work, and he told him that the railroad company would pay him, and to go ahead and do the work. For all of this work between August, 1906, and May, 1907, inclusive, plaintiff received pay exclusively from the Talley-Bates Company. After said company quit work in July, 1907, the railroad company paid plaintiff directly for his work done in July and August, 1907, but did so in no other instance. While this work was going on plaintiff discussed it with A.S. Baldwin at Iuka, Miss., who told him to go ahead and defendant would pay him for it. John M. Baldwin was defendant's assistant division engineer, W.A. Castler was its resident engineer on the Red Bay work, and A.S. Baldwin was chief engineer, residing at Chicago. None of them had any duty or authority in the matter of making contracts, or letting or subletting construction work for defendant railway company, and the two former denied ever having made the statement ascribed to them by plaintiff. The defendant requested in writing the affirmative charge, which was refused.

Percy, Benners & Burr, of Birmingham, and W.H. Key, of Russellville, for appellant.

Almon & Andrews, of Sheffield, and Kirk, Carmichael & Rather, of Tuscumbia, for appellee.

SOMERVILLE J.

In all of its material and decisive aspects this case cannot be distinguished from the case of Alexander v. Ala. Western R.R. Co., 60 So. 295, recently decided by this court. The principles of law which must here control were there fully discussed and clearly stated. Their application to the facts of this case are fatal to plaintiff's right of recovery, and the trial court should have given for defendant...