Baltimore & O. R. R. Co. v. Polly, Woods & Co.

• Decision Date: 09 August 1858
• Citation: 55 Va. 447
• Court: Virginia Supreme Court
• Parties: BALTIMORE & OHIO R. R. CO. v. POLLY, WOODS & CO.

55 Va. 447

BALTIMORE & OHIO R. R. CO. v. POLLY, WOODS & CO.

Supreme Court of Appeals of Virginia.

August 9, 1858

1. In assumpsit, upon the common count for work and labor & c. defendant offers a special plea setting out a special contract, and averring that the work, & c. sued for was done under it, and the acts to be done by defendant were done. The special plea, if it contains a defence to the action, only amounts to the general issue; and should be rejected.

2. In indebitatus assumpsit for work and labor, on the trial the plaintiffs having offered evidence tending to prove that they had done certain work for the defendant, and the price and value thereof, thereupon in the same connection offered evidence to prove independently of any special contract, the quantity, quality and kind of said work. Thereupon the defendants moved to exclude it, and with a view to its exclusion moved the court to suspend the reception of the plaintiffs' evidence, and offered to prove that the work was done under a special contract, and that the same was not complied with in certain particulars. HELD:

1. Defendant has no right to arrest the plaintiffs in the course of making out their case, by an offer to show that the work was done under a special contract, it not having appeared from the plaintiffs' evidence that there was any such contract.

2. If it appears in the course of the plaintiffs' evidence that the work was done under a special contract which remains in full force and ascertains the price; they have no right to prove the value of the work, and can only recover the contract price, upon proving the contract fully executed on their part.

3. If it appears from the plaintiffs' evidence, that the work was done under a written contract, they must, before they go any further, produce it, or duly account for its non-production, and prove its contents.

4. If it appear, for the first time, on the cross-examination of the plaintiffs' witnesses, or from the defendants' evidence, that the work was done under a special contract, or that the contract was in writing, the plaintiffs will then be required to proceed in the same way as if the fact had appeared in the course of their own evidence in chief.

3. It is for the judge who tries a cause to determine whether he will give or refuse an instruction asked for, before the argument is commenced or after it is concluded.

4. In an action for work and labor by a contractor on a rail road against the company, under a special contract which provides that the final estimate of the engineer shall be conclusive upon the parties, if the plaintiff proves that the final estimate made by the engineer was fraudulently made, he may recover without proving further that he was unable to procure such final estimate as is required by the contract after demand on the company, or other proper exertions on his part.

5. In an action for work and labor by a contractor on a rail road against the company, under a special contract, which provides that upon receiving the full amount of the final estimate made out agreeably to the terms of said contract, he shall give a release under seal from all claims or demands whatsoever, growing out of said contract; the giving such release is a condition precedent to his recovery, if the final estimate has been properly made out: but not if the final estimate was fraudulently made.

6. If the rail road company has paid to the contractor the whole amount of the final estimates, the contractor cannot maintain an action for the work done under the contract, unless he can prove that there was fraud or intentional misconduct on the part of the engineer making the final estimate.

7. Where an instruction to the jury is asked which is equivocal in its meaning; which upon one construction is correct, but upon another construction is incorrect, it should not be refused, if by so doing the jury may be misled; but should be given with an explanation giving it the meaning which will make it proper.

8. Where a party asks for an instruction which is itself proper to be given, it is error to refuse to give it as asked; though it is given with an addition which it does not appear is based upon any evidence given on the trial.

9. In an action by a contractor on a rail road against the company for work and labor, the plaintiffs having offered evidence tending to show that certain excavation which was a part of the work in controversy, was of solid rock, and the defendant having offered evidence tending to show the contrary; the defendant moved the court to have the jury taken to view the premises, they being about thirty miles off on the line of the road, and offered to send the jury on the train of the company, and to defray the expenses. The court having overruled the motion, the appellate court cannot say the court below erred, unless it appears from the record that a view was necessary to a just decision: and that does not so appear.^[a1]

10. Parties cannot by their consent authorize a jury to render their verdict to the clerk in the absence of the judge, and be discharged. And if a verdict is thus rendered, and the jury discharged, it is no verdict.

11. In such a case the parties agree to have the jury recalled to ascertain whether they agree to the verdict as rendered: and it appears from the statement of three of them, that they did not understand it according to its legal effect. As the question before the court was, whether the verdict delivered by the jury to the clerk should be made their verdict by their assent in open court, it was proper to hear all that the jurors had to say upon the subject, and be well satisfied whether they understood and fully concurred in the verdict. And under the circumstances the court should have ordered a new trial, or have sent the jury to their room to consider further of the verdict.

This was an action of assumpsit in the Circuit court of Marshall county brought by Polly, Woods & Co. against the Baltimore and Ohio Rail Road Company. The facts of the case and the points involved in it, are fully stated by Judge MONCURE in his opinion. There was a verdict and judgment for the plaintiffs; and thereupon the company applied to this court for a supersedeas; which was allowed.

C. Robinson, for the appellant.

Russell, for the appellees.

MONCURE J.

By articles of agreement, in writing but not under seal, entered into between the appellees Polly, Woods & Co. and the appellant, the Baltimore and Ohio Rail Road Company, on the 1st day of February 1851, the appellees agreed, in consideration of the payments therein mentioned, to graduate and prepare for the laying down of the railway tracks thereon, the 172d section of said road, according to the manner and conditions set forth in the agreement. The work was to be completed on or before the 1st of October 1852; and for doing it certain prices were agreed to be paid for the different kinds of work, as classified in the agreement. Then follows a clause in the agreement in these words: " The above payments shall be made in the following manner; that is to say, during the progress of the work, and until it is completed, there shall be a monthly estimate made by the aforesaid engineer (meaning the local or resident engineer having charge of the particular work for the time being), of the quantity, character and value of the work done during the month, or since the last monthly estimate, four-fifths of which value shall be paid to the said parties of the first part, at such places as the chief engineer may appoint; and when the said work is completed and so accepted by the said chief engineer, there shall be a final estimate made by the (local or resident) engineer of the quantity, character and value of said work, agreeably to the terms of this agreement, when the balance appearing to be due to the said parties of the first part, shall be paid to them, upon their giving a release under seal to the said company, from all claims or demands whatsoever growing in any manner out of this agreement. And it is expressly understood, that the monthly and final estimates of said engineer, as to the quantity, character and value of the work done during the month, or since the last monthly estimate, and at the completion of the work, shall be conclusive between the parties to this contract; unless the chief engineer may deem it proper at any time to revise and alter, in such manner as he may see fit, the monthly or final estimates of said engineer, in which event the estimate of the chief engineer shall be substituted to all intents and purposes in place of the estimate of said engineer; it being, however, wholly optional with the said chief engineer to exercise such power of revision or not." Then follow other provisions, which, for the present at least, it is unnecessary to notice.

A similar agreement was entered into between the same parties on the same day in regard to the 182d section of the said road; except that the prices agreed to be paid for the different kinds of work were generally different in the two agreements, and the appellees used the style of Woods, Polly & Bro. in regard to the latter agreement, while they used that of Polly, Woods & Co. in regard to the former.

The work on the 172d section was finished on the 4th of December 1852, and that on the 182d section on the 5th of September 1852. The monthly and final estimates were made of the quantity, character and value of the work done on each section, as provided for in the said agreements.

In August 1853 the appellees instituted an action of assumpsit against the appellant. The declaration contained but two counts, which were the common counts for work and labor, & c. and on an account stated. The bill of particulars filed with the...