Aldrich v. Columbia Southern Ry. Co.

• Decision Date: 08 April 1901
• Citation: 64 P. 455,39 Or. 263
• Parties: ALDRICH v. COLUMBIA SOUTHERN RY. CO. [1]
• Court: Oregon Supreme Court

64 P. 455

39 Or. 263

ALDRICH v. COLUMBIA SOUTHERN RY. CO. ^[1]

Supreme Court of Oregon

April 8, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Stephen W. Aldrich against the Columbia Southern Railway Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

This action was commenced in Wasco county, November 18, 1898, to recover money alleged to be due for grading done on the right of way for a railroad. It is averred in the complaint that plaintiff entered into a contract with the defendant, a corporation, whereby it agreed to pay him 67 1/2 cents per cubic yard for all earth or stone removed from cuts, and the same price for each cubic yard of said material placed in fills, in grading a part of its line of railway; that in pursuance of such agreement he excavated and filled 17,744 cubic yards of said material, amounting to $11,977.20, on account of which the defendant had paid him only the sum of $6,686.01. As a further cause of action, it is alleged that in pursuance of a special agreement entered into with the defendant, he performed other work and labor, for which it promised to pay him the sum of $329.80, but had neglected to do so, and judgment is demanded for the sum of $5,620.99 with interest thereon from November 15, 1898. The plaintiff having filed an affidavit for an attachment, and given an undertaking therefor in the sum of $5,620, with the name of the United States Fidelity & Guaranty Company, a corporation as surety, subscribed thereto by C.E. Bayard, whose appended affidavit shows that he is agent and attorney in fact for said surety, which had complied with the act of February 25, 1895, and was worth the sum of $11,220 over and above all debts and liabilities, exclusive of property exempt from execution, a writ of attachment was issued, in pursuance of which the defendant's property was attached as security for any judgment that might be obtained in the cause. The defendant's counsel moved the court to dissolve the attachment on the ground that the undertaking therefor was not executed by a competent surety, that the bond did not comply with the statutory requirement in that the amount thereof was too small, and that the surety did not justify in a sufficient sum. This motion having been overruled, the court, at the defendant's request, transferred the cause to the circuit court for Multnomah county, where an answer was filed denying the material allegations of the first cause of action, and alleging that the contract entered into with the plaintiff stipulated for the payment of 67 1/2 cents per cubic yard for all material taken from cuts made by him in grading a portion of its right of way and that he would make no charge for fills to be made with earth or stone taken from said cuts, provided said fills should be within the distance of 300 feet from the cuts, and that when the fills were at a greater distance he was to receive one cent per cubic yard for each additional 100 feet that said material might be hauled; that plaintiff was entitled only to the sum of $2,885.22, which it had been ready and willing at all times to pay; and tendered a judgment for that sum. A reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a judgment for plaintiff in the sum of $4,252.61, and the defendant appeals.

Wallace McCamant, for appellant.

Thos O'Day, for respondent.

MOORE J. (after stating the facts).

The controversy involved herein relates to the terms of the agreement entered into by the parties hereto. Plaintiff's counsel contend that he was to receive 67 1/2 cents for each cubic yard of material removed from cuts, and the same sum per cubic yard for placing it in fills; while defendant's counsel insist that he was entitled to only one payment for one movement of the same material, and that when he took material from a cut, and used it in making a fill, he was to be paid only 67 1/2 cents per cubic yard therefor. The transcript shows that, after some preliminary correspondence between the plaintiff and certain officers of the defendant company respecting the character of the grading to be done, he called upon D.C. O'Reilly, its general manager, and made two bids, one denominated "straight," and the other "classified," for the grading of a part of its right of way, and thereupon submitted the following memorandum evidencing his said offer, to wit: "70c. per yard straight cut and fill, or 90c. for solid rock and 35c. for loose rock." O'Reilly testified that when this bid was made he said to the plaintiff, in referring to the language used in the memorandum: "That does not mean, of course, that you are asking for the straight measurement of the yardage; you do not expect pay for moving the same material twice, where the material from the cut will go to make the fill; to which he replied, "No." The plaintiff, however, denies that any such conversation ever occurred. The defendant offered testimony tending to show that the word "straight" is commonly used in railway construction as contradistinguished from "classified"; that a straight bid is an offer to move material for a stated sum per yard, regardless of classification; that a classified bid is an offer to perform the same work for a stated sum for each of two or more kinds of material handled; and that the first proposal made by plaintiff was a straight, and the second a classified, bid.

Neither of plaintiff's bids was accepted, but a few days after they were made he met O'Reilly, who informed him that the defendant could do the grading for less money than he proposed, and thereafter the plaintiff, having a conversation over the telephone with E.E. Lytle, the president of the company, was informed by him that an unclassified bid would be considered; whereupon the plaintiff offered to reduce his straight bid for the performance of the work to 67 1/2 cents per yard, and Lytle, on behalf of the defendant, sent him a telegram of which the following is a copy: "Will give you contract at sixty-seven and half, as talked. When will you be on the ground?" The defendant's evidence tends to show that on the next day after receiving this telegram plaintiff had another conversation over the telephone with Lytle, who informed him that it was not necessary to go to Wasco to execute a written agreement; that a contract similar to that adopted by the Oregon Railway & Navigation Company for grading its roadbed would be prepared and sent to him for his signature; and that plaintiff, knowing the terms of the contract proposed, and being satisfied with the stipulations thereof, agreed to be governed by its conditions in the performance of the work. The plaintiff, however, as a witness in his own behalf, denied that he ever had any such conversation. The defendant offered in evidence a skeleton of a contract which it was claimed was similar to that used by the Oregon Railway & Navigation Company in evidencing agreements for grading rights of way, and Lytle testified that he submitted the same to plaintiff for execution if its terms were acceptable to him, or, if they were unsatisfactory, the form so submitted could be used as a guide to prepare a contract therefrom, but that none was ever executed. The uncontradicted testimony shows that the contracts of the Oregon Railway & Navigation Company all provide for but one payment for one movement of material in grading its right of way, and that when material is taken from a cut, and used in making a fill in grading, yardage is calculated but once.

We have given a brief epitome of the testimony introduced at the trial, not for the purpose of commenting upon its weight,--for that was a question for the jury to determine,--but to illustrate the issue involved, and as a basis for the inquiry whether the agreement entered into between the parties, as contended for by the plaintiff, was established in the manner prescribed by our statute. The plaintiff's counsel, when their client was on the stand as a witness in his own behalf, referring to the memorandum bids which he submitted to the defendant's agent propounded to him the following question: "These words, 'straight cut and fill,' have they special signification in contracting for grading?" to which the witness, without objection, replied, "Yes, sir." The bill of exceptions states that this was the only testimony tending to show that the words adverted to had any technical meaning in railway construction. The plaintiff also testified on cross-examination that in all his experience as a railway contractor he had heard or known of only two cases besides the one at bar in which a contractor had received double compensation for the movement of material from a cut to a fill; that one instance was a contract for the grading of a portion of the North Pacific Coast Railway in California, and the other for the construction of a section of the Oregon Railway & Navigation Company in this state; and that he had no personal knowledge of the latter contract, his information upon the subject having been derived from a statement to that effect made to him by one E.J. Jeffery. Jeffery, having been called as plaintiff's witness, testified to the effect that, in the absence of a stipulation in a contract, a person agreeing to grade a railroad was not to be paid for fills made from material taken from cuts; the usage in railroad parlance would convey the meaning that payment was to be made for the fill as well as for the cut; whereupon the following interrogatory was propounded to him: "But in the absence of a written statement that a party was not to be paid for fills made from material out of the cuts, in the absence of written explanation, what would you say as to its being the rule or...