Blair v. Corby

• Decision Date: 31 January 1860
• Citation: 29 Mo. 480
• Parties: BLAIR, Respondent, v. CORBY, Appellant.
• Court: Missouri Supreme Court

29 Mo. 480

BLAIR, Respondent,

v.CORBY, Appellant.

Supreme Court of Missouri.

January Term, 1860.

1. The admission of testimony that is merely irrelevant is no ground for the reversal of a judgment unless the testimony tends to mislead or prejudice the jury.

2. Questions of variance should be raised at the trial, so that an opportunity for amendments may be afforded.

3. Where a person contracts with a railroad company to grade and construct a division of the road, the company to retain a certain percentage as a security for the completion of the entire work, and the contractors sublet a portion of the division to another, and it is agreed between them that the contractor shall retain a certain percentage as security for the completion of the subcontract, and the subcontractor completes his portion, and it is received, he may recover the amount agreed upon, including the percentage, of the contractor, although the latter may have failed to entitles himself to his percentage as against the railroad company.

Appeal from Buchanan Court of Common Pleas.

This was an action to recover the sum of $3,195.89 alleged to be due plaintiff as a balance for work and labor done and materials furnished in constructing and completing certain work upon the Hannibal and St. Joseph Railroad under a contract entered into between plaintiff and defendant in April, 1856. The defendant was a contractor under John Duff & Co. The plaintiff was a subcontractor under defendant. The petition set forth substantially that by said contract plaintiff bound himself to construct and in every respect to complete the clearing, grubbing, masonry and trestle-work and piling, including the furnishing of materials and of all other things requisite and necessary to complete the roadbed of that portion of the Hannibal and St. Joseph Railroad known as section Ten, extending from section 580 to section 641; also the masonry on section Eight, on the west division of said road, at certain specified prices; that for said work and materials defendant was bound by said contract to pay plaintiff eighty-five per cent. in current funds, or in such money as shall be paid defendant by John Duff & Co., upon the estimates made by the engineer in charge of the work, and in ten days from the receipt of the corresponding monthly estimate to said defendant from John Duff & Co., fifteen per cent. thereof being retained as a security for the completion of the work and until the same is fully performed, accepted and finally estimated by the engineer, when the defendant, after the receipt of said retained percentage from John Duff & Co., will, within thirty days thereafter, pay plaintiff said amount retained. And said contract contained the further stipulation and provision, that whenever, in the opinion of said engineer, the contract shall have been wholly completed by the plaintiff, the defendant would pay him, and the plaintiff agreed to receive for the performance of said work in full compensation for materials furnished and work done, &c., the prices before specified in said contract; that said work should be executed under the direction and constant supervision of the engineer of the company; that the quantities and amounts of the several kinds of work performed are to be determined by the measurements and calculations of said engineer, which shall be final and conclusive. Plaintiff alleges that he has duly and fully complied with and performed the entire stipulations and conditions of said contract to be by him performed; that he has fully and entirely completed all the work by him to be performed; that said work had been accepted and received and finally estimated by the engineer in charge; that John Duff & Co., more than thirty days before the commencement of this suit, paid to defendant the full amount due upon such final estimate; that defendant had a contract with John Duff & Co. by which he bound himself to complete for them the first division west of the Hannibal and St. Joseph Railroad ready for the ties and track; that before the commencement of this suit the defendant had failed to comply with his said contract, and had forfeited the same and also the fifteen per cent. retained; that John Duff & Co., without completing said first division, surrendered said road into the hands of the company, which has ever since been using and enjoying the work done by plaintiff. Plaintiff also claims compensation for extra work, and asks judgment for $3,195.89, including $2,169.57 for the fifteen per cent. retained.

The following are the instructions given by the court at the instance of the plaintiff, and referred to below in the opinion of the court: “6. If the jury believe from the evidence that plaintiff has fully completed and performed the work specified in said petition and contract in evidence, and that before the commencement of this suit the same had been finally estimated and received by the engineer of the Hannibal and St. Joseph Railroad Company, or by his assistant or assistants, duly appointed, who were recognized by the defendant as such, and that defendant forfeited his contract with John Duff & Co., then plaintiff is entitled to recover in this action the full value of his work including said retained percentage, unless the same has been paid. 8. Although the jury may believe from the evidence that plaintiff did not fully complete his work by January 1, 1857, yet such failure could not forfeit his contract unless defendant took such steps to forfeit the same as is required by the third section of the contract read in evidence, by giving notice, &c. and there is no evidence that defendant took such steps or made such attempt.

The following instructions asked by the defendant were refused: “1. By the terms of the contract between plaintiff and defendant read in evidence to the jury, the plaintiff Blair was required and bound to complete the work specified in said contract before the 2d day of January, 1857; and unless the jury believe from the evidence that said work was completed at that time, they will find for the defendant. 2. Unless they believe from the evidence that the work specified in said contract to be performed by plaintiff was completed, accepted and finally estimated by the engineer of the Hannibal and St. Joseph Railroad Company before the commencement of this suit which was commenced on the 4th day of February, 1858, they will find for the defendant. 4. Unless the jury believe from the evidence that the work specified in said contract to the performed by plaintiff was prior to the commencement of this suit completed, accepted and finally estimated by the engineer of the Hannibal and St. Joseph Railroad Company, and that said work was also accepted by John Duff & Co., they will find for defendant. 11. The fifteen per cent....