Barcus v. Hannibal

• Decision Date: 31 October 1857
• Citation: 26 Mo. 102
• Parties: BARCUS, Respondent, v. HANNIBAL, RALLS COUNTY AND PARIS PLANK ROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

26 Mo. 102

BARCUS, Respondent,

v.HANNIBAL, RALLS COUNTY AND PARIS PLANK ROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1857.

1. Where one agrees to construct a plank road and fails to complete the same in the manner prescribed in the contract, he can only recover, if at all, on a quantum meruit.

2. The value of the work done must, in such case, be adjusted upon the theory that the work, if it had been completed according to the contract, would be worth the contract price.

3. An engineer of a plank road company, who has power under the contract for the construction of the road to control the contractor, and whose duty it is, among other things, after the road is completed, to make an estimate of all the work done, has no power, if it be found that the road has not been built according to contract, to bind the company to adjust the matter in any particular mode.

4. Acts of the directors of a corporation, to bind the corporation, must be done in their official capacity.

Appeal from Ralls Circuit Court.

This was a suit to recover a balance alleged to be due to the plaintiff for the construction of the Hannibal, Ralls County and Paris Plank Road. It is deemed unnecessary to set forth the facts adduced in evidence; they sufficiently appear in the opinion of the court. The following instruction the court, on its own motion, gave to the jury: “If the jury find that after the road was constructed the plaintiff proposed that the company should accept and receive the road by a deduction from the contract price thereof of such sums, for deficiencies in the work, as the engineer should estimate to be sufficient to complete the road according to the original contract, and that the engineer did proceed to make such estimates, and that the company afterwards adopted those estimates as a basis of settlement, and agreed to receive the road on that condition, and did afterwards receive and use the road, then both parties are bound by those estimates, unless they shall find that the plaintiff, by false representations of facts known to himself and not known to the engineer, or by fraudulent concealments from the engineer of defects in the road, induced the engineer to make his estimates of defective work less than their just value; in such case the jury shall allow the company, in addition to the estimates of deficiencies made by the engineer, whatever damages the company may have sustained in consequence of such fraud of the plaintiff.”

Other instructions were given and refused. The jury found for plaintiff.

Richmond, for appellant.

Broadhead and Henderson, for respondent.

I. By a fair construction of the contract between the parties the engineer was to direct and specify the kind of work to be done, and was empowered to judge of the quality of the work and whether it was done according to his specifications and the terms of the contract, and the company was therefore concluded in the matter by his judgment in regard thereto, unless the plaintiff practiced a fraud upon him.

II. If the defendants received the road and enjoyed the benefits of it, they are liable to plaintiff for the value of his work and materials not exceeding the contract price, though the work may not have been done according to contract, deducting such deficiencies as may have grown out of a failure to comply with the contract on the part of plaintiff. Under the contract the engineer was the proper person to judge of such deficiencies, and his action in the premises is conclusive upon defendants. (Cutter v. Powell, 2 Smith L. Cases, 22; Lee v. Ashbrook, 14 Mo. 378; Britton v. Turner, 6 N. H. 481.) The instructions given by the court were therefore correct. By the terms of the contract the contractor is to “be governed in all things relating to the work by the engineer.” His directions and acts then become a part of the contract as much as if they were written down and signed by the parties. If the engineer has violated the trust reposed in him by the company, they must look to him and not to the contractor.

SCOTT, Judge, delivered the opinion of the court.

Justice requires that the plaintiff should be paid the full value of his work. As he agreed to build a road in a complete and workmanlike manner for $2,300 a mile, if he failed to make the road as required by his agreement, he can only expect to receive as much as the road built by him is worth, considering that if it had been built in all respects in pursuance to the contract it would have been worth $2,300 per mile. To escape from this equitable mode of determining the controversy, the plaintiff has endeavored to set up an estimate or estimates by the engineer of the defects in the construction of the work, which he maintains are conclusive between the parties to this suit. It was certainly competent for the defendant to contract that the estimates of the deficiencies in the execution of the work should be made by an engineer, and that his estimates should be binding on the parties interested. As the plaintiff sets up this defence in order to avoid the rule dictated by natural justice for the adjustment of this dispute, he should show, by evidence that would satisfy a jury, that there was such an understanding between the parties. There is no hardship in holding the plaintiff to this proof, as in the event of his failure to...