Bean v. Miller

• Decision Date: 30 April 1879
• Parties: BEAN v. MILLER, Appellant.
• Court: Missouri Supreme Court

69 Mo. 384

BEAN

v.MILLER, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Atchison Circuit Court.--HON. H. S. KELLEY, Judge.

At the trial the plaintiffs introduced testimony tending to prove the following points and facts: 1. That plaintiffs worked themselves on the first seven miles of their contract, up to the 1st day of November, 1873, when they abandoned it. 2. That the remaining five miles of said contract was sub-let to other parties, who worked on that portion from time to time, until they abandoned their work in April or May, 1874. 3. That the defendant knew all the time of said sub-contractors; never objected to them, and agreed to it before and at the time it was done, to hasten the work. 4. That the amount of cubic yards of excavation ranged from 39,000 to 58,000; clearing, 17 to 23 acres; grubbing, 2 1/2 acres, estimated and unestimated. 5. That by the 1st day of November, 1873, plaintiffs had completed all the work on the first seven miles, where the right of way had been procured. 6. That defendant, during the progress of the work, frequently promised plaintiffs and their sub-contractors to pay for said work, and that plaintiffs quit work on account of failure to get right of way and money due them on their work; and that the sub-contractors quit their work because they could not get their money from plaintiffs. 7. The evidence also tended to show that approximate estimates of the work done in September, October and November, 1873, and other months, were made and furnished to defendant as provided in the contract substantially to the amounts indicated in the ninth instruction asked for defendant; that plaintiffs demanded payment of 85 per cent. of these estimates from month to month as they became due, and in May, 1874, demanded pay for all the work done, including the large additional amounts which had not been included in the approximate estimates. Defendant's own deposition stated that most of these approximate estimates had been returned to him, and admitted that he had paid nothing for the work, and that he owed plaintiffs something. 8. While the evidence tended to show that the work done on the last five miles was done by parties called in this suit sub-contractors; it further tended to show that plaintiffs retained and exercised personal control over the work, and that they had employed Zimmerman, Rhodes & Phelps to do that part of the work by the piece or job, instead of working by the day as had been done with the first seven miles. 9. The evidence further tended to show that both the defendant and said engineer directed plaintiffs not to work without owner's consent where the right of way had not been secured, and that the work so far as done, was under supervision of said engineer or his assistants.

Allen H. Vories for appellant.

1. The suit cannot be maintained as an action on the contract, because it is admitted that there was a failure on plaintiffs' part to complete the contract, and it is no where alleged that plaintiffs are ready to complete it, or that it has been accepted by defendant, but it is charged that they completed it as far as the failure, default and interference of defendant would permit them. Denny v. Kile, 16 Mo 450; Downey v. Burke, 23 Mo. 228; Marsh v. Richards, 29 Mo. 105; McCullough v. Baker, 47 Mo. 401; Williams v. Porter, 51 Mo. 441; Yeats v. Ballentine, 56 Mo. 533; Turner v. Mellier, 59 Mo. 535; Eyerman v. Mt. Sinai Cem. Ass., 61 Mo. 491; Porter v.McPherson, 61 Mo. 241; Lee v. Ashbrook,14 Mo. 378; Canal Co. v. Gordon, 6 Wall. 561; Merrill v. 1. & O. R. R. Co., 16 Wend. 588.

2. The plaintiffs' first instruction was erroneous in assuming that under the contract defendant was bound to procure the right of way from the owners of the land over which the road ran. The contract was silent on that point.

3. The plaintiffs' second and fifth instructions were erroneous. The failure to pay the monthly estimates was no legal excuse for suspending the work until payment was made. Hale v. Trout, 35 Cal. 242; Cox v. McLaughlin, 1 Cal. Leg. Record, 42; s. c., 52 Cal. 590; Merrill v. I. & O. R. R. Co., 16 Wend. 588.

4. Plaintiffs' third instruction is erroneous. The contract expressly prohibits sub-letting, and the petition says nothing about a waiver of this prohibition. The plaintiffs must recover on the cause of action stated in their petition--not upon an excuse for non-performance of their contract heard of for the first time in the replication. Henning v. U. S. Ins. Co., 47 Mo. 430. The contract between the parties being under seal, there must have been a performance or a release under seal; and no parol change of its terms to admit of parol proof of consent to sub-let, can avail in this case. Thomas v. Cox, 6 Mo. 506; Wildbahn v. Robidoux, 11 Mo. 659; Sinard v. Patterson, 3 Black. 358.

John P. Lewis for respondents.

1. Appellant having in the contract employed respondents to do the clearing, grubbing, excavating, &c., on the road, was bound to survey and mark out the road and secure rights of way from land owners. It was in no sense the respondents' duty. Marsh v. Richards, 29 Mo. 99; Hammer v. Breidenbach, 31 Mo. 49; Appleby v. Myers, 6 Law Reg. (N. S.) 112; Allamon v. Albany, 43 Barb. 33.

2. Even if the contract could be so construed as to prevent respondents from performing any part of the work by sub-letting to others, yet the evidence is abundant that the work done by Zimmerman, Rhodes and others, was done with appellant's consent; that he even urged them to continue work, and the only money paid was to Zimmerman, one of the supposed sub-contractors.

3. The appellant's delays and defaults had become so oft repeated and chronic as to be practically an abandonment on his part; certainly they were sufficient to warrant respondents in suspending work and suing for the amount earned under the contract. And the contract price would be the least they could be required to accept. McCullough v. Baker, 47 Mo. 401. Mere failure to pay installments as they become due may not in ordinary cases be sufficient to authorize abandonment and suit for prospective damages for work not performed. Fitzgerald v. Haywood, 50 Mo. 524. But it is sufficient to authorize the contractor to suspend and recover for work already performed at the contract price.

4. Even had respondents been in fault, yet in the absence of any proof of damages to the opposite party they would still be entitled to recover the value of the work as measured by the contract, unless some smaller value was shown. Yeats v. Ballentine., 56 Mo. 530; Thompson v. Alloman, 7 Mo. 530; Dutro v. Walter, 31 Mo. 516; Potter v. McPherson, 61 Mo. 240; Van Buren v. Digges, 11 How. (U. S.) 461.

5. Appellant's points on sub-letting are untenable. It is only necessary to allege the breaches complained of. 1 Sand. Plead. & Ev., 197, 200. At most it was only a matter of defense to be set up by defendant, and he having consented to and requested the sub-letting is estopped from setting up his own act as a defense. Ritter v. Sun Mut. Ins. Co., 40 Mo. 40. Proof of waiver such as this is not proof of change of contract, but of performance. St. Louis Co. v. Kyle, 11 Mo. 278. So as to the objection that the contract was under seal and its terms cannot be waived by parol. Pratt v. Morrow, 45 Mo. 407; Dearborn v. Cross, 7 Cow. 48; Lattimore v. Harsen, 14 Johns. 330; Fleming v. Gilbert, 3 Johns. 528; Smith v. Gugerty, 4 Barb. 614.

6. The objection that the work could only be suspended on written orders of engineers, is without merit. That provision of the contract must be construed in connection with the other provisions; such as payment of monthly installments, the making of estimates, &c. It pre-supposes that the other provisions of the contract are also performed.

NAPTON, J.

This suit was brought to recover the value of certain work performed by the plaintiffs, under a contract with defendant, and to understand the points made against the verdict and judgment for the plaintiffs, under instructions from the court. I insert from the abstract a copy of the contract.

Contract for Construction of the Chicago & Atlantic Railway:

Made at Kenton, Hardin county, Ohio, by and between William Miller, of the first part, and H. F. Bean and J. W. Alsop, of Marion, Ohio, of the second part, witnesseth: That for and in consideration of the payments and covenants hereinafter mentioned, to be made and performed by the said William Miller, the said party of the second part doth hereby covenant and agree to construct and finish in the most substantial and workmanlike manner, to the satisfaction of the engineer of the Western Railway Construction Company, all work awarded to said party at the prices affixed, to be finished in compliance with the accompanying specifications.

Second, The engineer of the Western Railway Construction Company, or an assistant by his direction, shall, as soon as practicable, after the end of each month, make out an approximate estimate of the quantity and value of each species of work done, pursuant to this contract, at the prices affixed; he shall also include the value of any extra work caused to be done by him; and it is mutually agreed that the prices decided upon by the engineer shall be final and conclusive for all extra work.

Third, Within fifteen days after the return of said estimate, 85 per cent. of the sum appearing to be due for work performed since the preceding estimate, shall be paid to the party of the second part.

Fourth, Within thirty days after the work shall have been completed and accepted by the engineer, a final estimate therefor shall be made, and the amount appearing due from accrued percentage and otherwise, shall be paid to the party of the second part.

It is mutually agreed between the parties to this contract, that the work herein embraced, shall be commenced within ten days after this date, and that it shall be steadily prosecuted without intermission with such force as shall, in the...