Baltimore & O. R.R. v. Lafferty

• Court: West Virginia Supreme Court
• Writing for the Court: Brown, President
• Citation: Baltimore & O. R.R. v. Lafferty, 2 W.Va. 104 (W. Va. 1867)
• Decision Date: 31 January 1867

2 W.Va. 104

Supreme Court of Appeals of West Virginia.

Baltimore and Ohio R. R. Co. vs. J. & W. G. Lafferty. January Term, 1867.

1. So long as a contract continues executory, the plaintiff must declare speci-

ally; but when it has been executed on his part, and nothing remains but the payment of the price in money, by the defendant, the plaintiff may declare generally, using the common counts, or specially on the original contract, at his election.

2. Where the contract, though partly performed, has been abandoned by mu-

tual consent, the plaintiff may resort to the common counts alone for remuneration for what he has done under the special agreement.

3. Where it appears that what was done by the plaintiff, was done under a

special agreement, but not in the stipulated time or manner, and yet was beneficial to the defendant, and is or has been accepted and enjoyed by him, the plaintiff cannot recover upon the contract from which he has dedeparted; yet he may recover upon the common counts for the reasonable value of the benefit which upon the whole the defendant has derived from what he has done.

4. Plaintiffs and defendant entered into a special contract, by which the

plaintiffs were to make certain sections of defendant's railroad, in a special manner, under the supervision and control of the defendant's engineers, to be completed by a specified time and at a specified price; estimates were to be made by the engineers and acquittances executed by the plaintiffs. Much of the work was done under the contract, and the road partly finished and partly paid for, but the plaintiffs failing to complete it in the time specified, they continued the work with the consent of the defendant, until it was completed, or accepted as completed by the defendant's engineers having the supervision and control of it, and final estimates made and rendered. Held:

That the plaintiffs can recover, in assumpsit, under the common counts.

5. A party ought not to be heard to complain, that the court would not stul

tify itself by giving, at his instance, instructions which contradict each other, and thus confuse rather than enlighten the jury.

6. It is as competent for a jury to investigate fraud as a ohancellor; the evb

dence to sustain actual fraud must be the same, in substance and effect, in one form that it is in the other.

7. An instruction is void for uncertainty, and ought to be refused as calcula^

ted to confuse the jury, when it contains a bare assertion that if the jury believed the work and labor was done by the plaintiffs under a special contract, without averring a condition precedent, or that it was still open and subsisting; or whether the evidence stated in the bill of exceptions tended to show whether the contract had been completed or rescinded, or whether the work done under the contract, not in accordance with its provisions, and yet it being beneficial to, had been accepted and appropriated by the defendant.

8. A case, in which from great discrepancies in calculations and estimates, a

jury was justifiable in presuming fraud, and a motion to set aside a ver diet and grant a new trial, because the verdict was contrary to evidence, was properly refused.

John and William G. Lafferty, partners under the firm and style of J. &W. G. Lafferty, brought an action of assumpsit in the circuit court of Ohio county, in June, 1853, against the Baltimore and Ohio Railroad Company, claiming 25, 000 dollars damages.

The declaration contained the usual indebitatis assumpsit count, and an insimul cowpvtassent count. Issue was joined upon the plea of non assumpsit. The cause was tried at the spring term 1854, and the jury rendered a verdict for the plaintiffs, assessing damages at 15, 307 dollars and 60 cents, with interest from the 20th day of December, 1852. The defendants moved for a new trial, which was refused, and the cause was carried to the Court of Appeals of Virginia, on a bill of exceptions taken to the refusal of the circuit court to give certain instructions to the jury; and in July, 1858, the following order was entered:

"This day came again the parties by their attorneys, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of the opinion that the said circuit court erred, in refusing to give the second and third instructions asked for by the defendant in said court, and in giving certain other instructions in lieu thereof. The second ought to have been given with an addition thereto, basing it upon the further belief of the jury that "a final estimate was made according to the said contract and without fraud; and the third ought to have been given in the form in which it was asked for, or both ought to have been given in the form and to the effect following, to wit;

"If the jury believe from the evidence, that the contract offered in evidence was entered into between the parties; that the work, &c, set out in the first count of the declaration was done, &c, under and by virtue of that contract, and that a final estimate was made according to the said contract and without fraud, then the plaintiffs are not entitled to recover under the said first count

" 1st. Without proving that before the action was instituted, they gave or offered to give to the defendants, upon receiving the balance appearing to be due upon the said final estimates, a release under seal from all claims, or demands, whatsoever, growing in any manner of the said contract.

"Nor, secondly: If the jury believe from the evidence that before the action wras instituted, the amount of said final estimate was paid by the defendant to the plaintiffs.

"Therefore, and for reasons stated in writing and filed with the record, it is considered that the said judgment be reversed and annulled, and that the plaintiff in error recover of the defendants in error its costs by it expended in the prosecution of its writ aforesaid here.

"And this court, proceeding to give such judgment as the said circuit court ought to have given, it is further considered that the verdict of the jury be set aside, and the cause be remanded to the said circuit court for a new trial to be had therein, which is ordered to be certified to the said circuit court of Ohio county."

The cause was again tried in the circuit court of Ohio county, at the June Term 1860, and a verdict returned for the plaintiffs, the damages being assessed at 10, 600 dollars with interest from the 1st day of December, 1852.

On motion of the defendant, the verdict of the jury was set aside and a new trial granted on the usual conditions. At the Fall term of 1860, the venue was changed to Brooke county.

A trial was again had at the June Term 1865, and the jury again found a verdict for the plaintiffs, assessing their damages at 12, 417 dollars and 78 cents, with interest from the 20th day of December, 1852. The defendant moved the setting aside of the verdict and granting of a new trial, but the court overruled the motion, and entered judgment upon the verdict.

On the trial of the cause, the plaintiffs read in evidence to the jury a contract between themselves and the defendant, dated January 20th, 1851, which stated that they agreed to grade, and prepare for laying down a track for a railroad that the defendant was constructing from Baltimore to the Ohio river, two sections, Nos. 161 and 162. Among other stipulations, the excavation was divided into three kinds, earth, loose rock, and solid rock, and was to be paid for at a specified price per cubic yard; the masonry was likewise classed under several heads, and the width of gradation and a great variety of other particulars were specifically set forth; the whole to be under the immediate supervision of a local engineer employed on behalf of the defendant: the plaintiff agreed to complete the contract by the 1st day of June, 1852. Monthly estimates of the progress of the work were to be made by the engineer, and of the quantity, character and value of the same, and four-fifths of such value was to be paid by the defendant at such place as the chief engineer should appoint; and when the whole work was completed and accepted by the chief engineer, there was to be a final estimate by the local engineer, and any balance appearing to be due the plaintiffs was to be paid them upon their executing a release under seal from all claims and demands under said agreement. It was further stipulated and understood, that the monthly and final esti-timates of the local engineer, as to quantity, character and value of work, should be conclusive between the parties to the contract, unless the chief engineer should deem proper at any time to revise and alter them, when his estimates should be substituted as to finality for those of the local engineer; that if the work was not completed by the plaintiffs within the time specified, or if the work did not progress with sufficient speed, the chief engineer might annul the contract, of which three day's notice was to be given, and thereby the plaintiffs forfeited the unpaid part of the value of work clone, and the defendant was at liberty to enter and complete the work.

The circuit court certified that it was proved that the plaintiffs did a large amount of work and labor on the contract; that the monthly estimates were made by on Benjamin D. Frost, a local engineer designated by the defendant, and that in the autumn of 1851 his lodge took fire, and his books and papers were destroyed, and that the estimates for two or three months following were made by taking the force in men and horses employed by the plaintiffs and computing the amounts of the estimates by the quantities of work estimated to be done by such numbers of men and horses within such period; but, in the opinion of the witness, erroneously made. That by the aid of cross sections, made previous to the fire, and returned to the office of the division engineer, the local engineer Frost, proceeded to...